Application and entire agreement

  1. These Terms and Conditions of Sale will apply to the purchase of the goods, software or services detailed in our quotation (Goods) by the buyer (you or Customer) from Pendulum IT Ltd a company registered in England and Wales under number 08887372 whose registered office is at 30 Moorgate,  London,  EC2R 6DN  (we or us or Supplier).
  2. These Terms and Conditions of Sale will be deemed to have been accepted by you when you accept them or the quotation or from the date of any delivery of the Goods (whichever happens earlier) and will constitute the entire agreement between us and you.
  3. These Terms and Conditions of Sale and the quotation (together, the Contract) apply to the purchase and sale of any Goods between us and you, to the exclusion of any other terms that you try to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

Interpretation

  • A “business day” means any day other than a Saturday, Sunday or bank holiday in England and Wales.
  • The headings in these Terms and Conditions of Sale are for convenience only and will not affect their interpretation.
  • Words imparting the singular number include the plural and vice-versa.

Goods

  • The description of the Goods is set out in our sales documentation or website, unless expressly changed in our quotation. In accepting the quotation you acknowledge that you have not relied upon any statement, promise or other representations about the Goods by us. The descriptions of the Goods set out in our sales documentation or website is intended as a guide only and the Customer is responsible for determining the suitability of the Goods for any intended purpose or use case.
  • We can make any changes to the specification of the Goods which are required to conform to any applicable safety or other statutory or regulatory requirements.

Services

  • If the Goods are services:
    • We warrant that we will use reasonable care and skill in our performance of the services which will comply with the quotation, including any specification in all material respects. We can make any changes to the services which are necessary to comply with any applicable law or safety requirement, and we will notify you if this is necessary.
    • We will use our reasonable endeavours to complete the performance of the services within the time agreed or as set out in the quotation; however, time shall not be of the essence in the performance of our obligations.
    • You must obtain any permissions, consents, licences or otherwise that we need and must give us with access to any and all relevant information, materials, properties, logins, passwords, security privileges and any other matters which we need to provide the services. If you do not comply with this clause, we can terminate the services. We are not liable for any delay or failure to provide the services if this is caused by your failure to comply with the provisions of this clause.

Price

  1. The price (Price) of the Goods is set out in our quotation or our website current at the date of your order or such other price as we may agree in writing.
  2. If the cost of the Goods to us increases due to any factor beyond our control including, but not limited to, material costs, labour costs, alteration of exchange rates or duties, or changes to delivery rates, we can increase the Price prior to delivery.
  3. Any increase in the Price under the clause above will only take place after we have told you about it. You may accept the increase in Price or cancel your order.
  4. You may be entitled to discounts. Any and all discounts will be at our discretion.
  5. The Price is exclusive of fees for delivery. Unless otherwise agreed in writing the fee for delivery is £10 per shipment and per delivery address.
  6. If the Goods are services in addition to the Price, we can recover from you a) reasonable incidental expenses including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, b) the cost of services provided by third parties and required by us for the performance of the Services, and c) the cost of any materials required for the provision of the Services.
  7. You must pay us for any additional services provided by us that are not specified in the quotation in accordance with our then current, applicable daily rate in effect at the time of performance or such other rate as may be agreed between us.
  8. Where the Price shown on the quotation is dependent on the amount of consumption of Goods or services (for example the amount of storage or compute resource utilised) by the Customer, we will automatically and periodically invoice you for that consumption.
  9. If it is reasonably apparent that the Price provided by us is incorrect, the Customer shall notify us of the same and we shall have the right to cancel the order, or amend the Price by providing the Customer with a new quote which they can accept or reject.
  10. The Price is exclusive of any applicable VAT and other taxes or levies which are imposed or charged by any competent authority.

Cancellation and alteration

  • Details of the Goods as described in the clause above (Goods) and set out in our sales documentation or website are subject to alteration without notice and are not a contractual offer to sell the Goods which is capable of acceptance.
  • The quotation (including any non-standard price negotiated in accordance with the clause on Price (above) is valid during the calendar month in which they were issued unless expressly withdrawn by us at an earlier time.
  • Either of us can cancel the order for any reason prior to your acceptance (or rejection) of the quotation.
  • After acceptance of the quotation you may not cancel the order unless written confirmation is obtained from an authorised representative of us, however you shall remain liable for any costs, damages, losses, charges and expenses incurred by us as a result of any cancellation of an order.
  • If you want to amend any details of the Good or services you must tell us in writing as soon as possible. We will use reasonable endeavors to make any required changes and additional costs will be included in the Price and invoiced to you.

Payment

  • We will invoice you for the Price either:
    • on or at any time after delivery of the Goods; or
    • where the Goods are to be collected by you or where you wrongfully do not take delivery of the Goods, at any time after we have notified you that the Goods are ready for collection or we have tried to deliver them; or
    • when we have completed the services.
  • You must pay the Price within 30 days of the date of our invoice or otherwise according to any credit terms agreed between us.
  • Omitted.
  • If you do not pay within the period set out above, we can suspend any further deliveries or services to you and without limiting any of our other rights or remedies for statutory interest, charge you interest at the rate of 27% per annum above the base rate of the Bank of England from time to time on the amount outstanding until you pay in full.
  • Time for payment will be of the essence of the Contract between us and you.
  • All payments must be made in British Pounds unless otherwise agreed in writing between us.
  • Both parties must pay all amounts due under these Terms and Conditions of Sale in full without any deduction or withholding except as required by law and neither party is entitled to assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any such amount in whole or in part.
  • The parties acknowledge that this Contract shall prevail over any terms and conditions where the Customer’s purchase order constitutes the Order Form.

Delivery

  • We will arrange for the delivery of the Goods to the address specified in the quotation, or your order or to another location we agree in writing, or in the case of electronic delivery of Goods to the email address or other electronic location as agreed.
  • If you do not specify a delivery address or if we both agree, you must collect the Goods from our premises.
  • Subject to the specific terms of any special delivery service, delivery can take place at any time of the day and must be accepted at any time between 8 am to 8 pm.
  • If you do not take delivery of the Goods we may, at our discretion and without prejudice to any other rights:
    • store or arrange for the storage of the Goods and will charge you for all associated costs and expenses including, but not limited to, transportation, storage and insurance; and / or
    • make arrangements for the redelivery of the Goods and will charge you for the costs of such redelivery; and/or
    • after 10 business days, resell or otherwise dispose of part or all of the Goods and charge you for any shortfall below the price of the Goods.
  • If redelivery is not possible as set out above, you must collect the Goods from our premises and will be notified of this. We can charge you for all associated costs including, but not limited to, storage and insurance.
  • Any dates quoted for delivery or completion of services are approximate only, and the time of delivery or time of completion of services is not of the essence. We will not be liable for any delay or cancellation in delivery of the Goods that is caused by a circumstance beyond our control or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
  • We can deliver the Goods by installments, which will be invoiced and paid for separately. Each installment is a separate contract. Any delay in delivery or defect in an installment will not entitle you to cancel any other installment.
  • We may take instruction, and receive acknowledgment for delivery of the equipment, from a person whom we think, with good reason, is acting with the Customer’s permission.

Inspection and acceptance of Goods

  • You must inspect the Goods on delivery or collection.
  • If you identify any damages or defects or shortages or unsatisfactory completion of services, you must inform us in writing within 7 days of delivery, providing details. We will only accept a return or refund request if we are satisfied that the damages or defects or shortages or unsatisfactory completion of services is as described by the Customer and the Goods are returned with all of the original packaging, in the same working and complete condition as when delivery was completed.
  • Our suppliers, and the Good’s manufacturers or developers, may each have a different policy for returns or DOA, or warranty period, or terms and conditions of warranty, and these can be confirmed on request.
  • The return of Goods which are not subject to damages, defects or shortages will only be authorised by us if the packaging is unopened and undamaged, the request is within 30 days of delivery, and our supplier provides authorisation of the return to us. If the return is authorised by us restocking fees, delivery charges or other conditions may apply.
  • Our warranty does not cover fair wear and tear. If the Customer reports a fault and Pendulum IT Ltd finds there is none or that the Customer has caused the fault, then Pendulum IT Ltd may apply a charge. Except where the Customer relies on Pendulum IT Ltd’s written advice, it is the Customer’s responsibility to satisfy itself as to the suitability of Equipment for its needs. Pendulum IT Ltd does not warrant that the Software supplied under the Contract will be free of all faults or that its use will be uninterrupted. Pendulum IT Ltd will pass on to the Customer the benefits of any warranty or guarantee that it has obtained from the Software supplier on the same terms. Pendulum IT Ltd will use its reasonable endeavours to remedy any faulty work that it has done provided that the Customer notifies Pendulum IT Ltd in writing of the fault within seven days after the work has been completed.
  • Where the Goods are software or software licences which is provided to the Customer in a physical format no refund will be authorised if the seal has been broken or damaged. Where the Goods are software or software licences which are provided to the Customer in a electronic format (for example by email or download) the order is non-refundable.  
  • Subject to your compliance with this clause and/or our agreement, you may return the Goods and we will, at our discretion repair, or replace, or provide additional services, or refund the Goods or part of them.
  • We will be under no liability or further obligation in relation to the Goods if:
    • if you fail to provide notice as set above; and/or
    • you make any further use of such Goods after giving notice under the clause above relating to damages and shortages; and/or
    • the defect arises because you did not follow our oral or written instructions about the storage, commissioning, installation, use and maintenance of the Goods; and/or
    • the defect arises from normal wear and tear of the Goods; and/or
    • the defect arises from misuse or alteration of the Goods, negligence, wilful damage or any other act by you, your employees or agents or any third parties.
  • You bear the risk and cost of returning the Goods.
  • Acceptance of the Goods will be deemed to be upon inspection of them by you and in any event within 2 days after delivery.
  • We do not warrant that the Customer’s use of any Goods will be uninterrupted and error-free.

Risk and title

  • The risk in the Goods will pass to you on completion of delivery.
  • Title to the Goods will not pass to you until we have received payment in full (in cash or cleared funds) for: (a) the Goods and/or (b) any other goods or services that we have supplied to you in respect of which payment has become due.

Sub-Contracting and assignment

  • We can, solely with your written consent, at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of our rights under these Terms and Conditions of Sale and can subcontract or delegate in any manner any or all of our obligations to any third party.
  • You must not, without our prior written consent, assign, transfer, charge, subcontract or deal in any other manner with all or any of your rights or obligations under these Terms and Conditions of Sale.

Termination

  • Both parties can terminate the sale of Goods under the Contract where:
    • One party commits a material breach of theirr obligations under these Terms and Conditions of Sale, and subsequently fail to rectify the material breach seven (7) days after being notified by the client via written instrument;
    • Either party is orr becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors;
    • Either party enters into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with  creditors; or
    • either party convenes any meeting of their creditors, enter into voluntary or compulsory liquidation, have a receiver, manager, administrator or administrative receiver appointed in respect of their assets or undertakings or any part thereof, any documents are filed with the court for the appointment of an administrator, notice of intention to appoint an administrator is given by either party or any of their directors or by a qualifying floating charge holder (as defined in para. 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of their affairs or for the granting of an administration order, or any proceedings are commenced relating to insolvency or possible insolvency.

Intellectual property

  • We or our suppliers reserve all copyright and any other intellectual property rights which may subsist in any goods or services supplied in connection with the provision of the Goods. We reserve the right to take any appropriate action to restrain or prevent the infringement of such intellectual property rights.
  • The Customer and the Supplier grants to the other a non-exclusive, limited, revocable licence to use its intellectual property rights solely to the extent necessary for the other Party to perform its obligations under the Contract
  • Except as permitted by applicable law or as expressly permitted under the Contract the Customer must not, without prior written consent, copy, de-compile or modify any Software, copy manuals or documentation or permit anyone else to do so.

Limitation of liability

  • Both parties liability under the Contract, and in breach of statutory duty, and in tort, misrepresentation or otherwise will be limited to this section.
  • Subject to the clauses above on Inspection and Acceptance and Risk and Title, all warranties, conditions or other terms implied by statute or common law (save for those implied by Section 12 of the Sale of Goods Act 1979) are excluded to the fullest extent permitted by law.
  • Subject to clause 65, both parties accept liability to the other in contract, tort (including negligence) breach of statutory duty or otherwise for direct loss to a value not to exceed the lower of the total amount of the Price payable by you, or where periodic payments or installments apply the total amount paid to us by the Customer in a 12 month period. Both parties’ total liability will not, in any circumstances, exceed the lower of the total amount of the Price payable by you, or where periodic payments or installments apply the total amount paid to us by the Customer in a 12 month period.
  • Both parties will not be liable (whether caused by employees, agents or otherwise) in connection with the Goods, for:
    • any indirect, special or consequential loss, damage, costs, or expenses; and/or
    • any loss of profits; loss of anticipated profits; loss of business; loss of data; loss of reputation or goodwill; business interruption; or, other third party claims; and/or
    • any failure to perform any  obligations if such delay or failure is due to any cause beyond our reasonable control; and/or
    • any losses caused directly or indirectly by any failure or breach by a party in relation to their obligations; and/or
    • any loss relating to the choice of the Goods and how they will meet your purpose or the use by you of the Goods supplied.
  • You must indemnify us against costs suffered by us arising from any loss or damage to any equipment (including that belonging to third parties) caused by you or your agents or employees.
  • The Customer acknowledges that we are not the manufacturer or developer of the Goods. We will use our reasonable endeavours to provide the Customer with the benefit of any warranty that the manufacturer or developer of the Goods offers.
  • All content, access and functionality of our websites or e-procurement systems is provided on an ‘as is’ basis and we do not warrant the accuracy or availability of that content, access or functionality now or in the future.
  • The exclusions of liability contained within this clause will not exclude or limit our liability for death or personal injury caused by our negligence; or for any matter for which it would be illegal for us to exclude or limit our liability; and for fraud or fraudulent misrepresentation.

Communications

  • All notices under these Terms and Conditions of Sale must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party).
  • Notices will be deemed to have been duly given:
    • when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient;
    • when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated;
    • on the fifth business day following mailing, if mailed by national ordinary mail; or
    • on the tenth business day following mailing, if mailed by airmail.
  • All notices under these Terms and Conditions of Sale must be addressed to the most recent address, email address or fax number notified to the other party.

Confidentiality

  • Confidential Information mean any information disclosed by or on behalf of a disclosing party to a receiving party during the provision of Goods under these Terms and Conditions of Sale that is confidential in nature or may reasonably be considered to be commercially sensitive, and which relates to the business and affairs of the disclosing party including but not limited to: (a) all intellectual property rights of the disclosing party and (b) all analyses, compilations, studies and other documents prepared by the receiving party which contain or otherwise reflect or are generated from the information referred to above;
  • In consideration of the disclosure to it of Confidential Information by the Disclosing Party the Receiving Party agrees and undertakes that it will:
    • keep all Confidential Information strictly confidential and will not disclose any part of it to any other person without the Disclosing Party’s prior written consent;
    • not use any part or the whole of the Confidential Information directly or indirectly for any purposes other than as required for the provision of Goods under these Terms and Conditions of Sale without the express written consent of the Disclosing Party;
    • use the same degree of care to protect the Confidential Information as it uses to protect its own confidential information, being at least a reasonable degree of care.

Data protection

  • When providing the Goods to the Buyer, the Seller may gain access to and/or acquire the ability to transfer, store or process personal data of employees of the Buyer.
  • The parties agree that where such processing of personal data takes place, the Buyer shall be ‘data controller’ and the Seller shall be the ‘data processor’ as defined in the General Data Protection Regulation (GDPR) as may be amended, extended and/or re-enacted from time to time.
  • For the avoidance of doubt, ‘Personal Data’, ‘Processing’, ‘Data Controller’, ‘Data Processor’ and ‘Data Subject’ shall have the same meaning as in the GDPR.
  • The Seller shall only Process Personal Data to the extent reasonably required to enable it to provide the Goods as mentioned in these Terms and Conditions of Sale or as requested by and agreed with the Buyer, shall not retain any Personal Data longer than necessary for the Processing and refrain from Processing any Personal Data for its own or for any third party’s purposes.
  • The Seller shall not disclose Personal Data to any third parties other than employees, directors, agents, subcontractors or advisors on a strict “need-to-know” basis and only under the same (or more extensive) conditions as set out in these Terms and Conditions of Sale or to the extent required by applicable legislation and/or regulations.
  • The Seller shall implement and maintain technical and organisational security measures as are required to protect Personal Data Processed by the Seller on behalf of the Buyer. Further information about the Seller’s approach to data protection are specified in its Data Protection Policy, which can be found on our website. For any enquiries or complaints regarding data privacy, you can e-mail: privacy@pendulum-it.com.

Circumstances beyond the control of either party

  • Neither party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the party in question.

No Waiver

  • No waiver by us of any breach of these Terms and Conditions of Sale by you shall be considered as a waiver of any subsequent breach of the same or any other provision.

Severance

  • If one or more of these Terms and Conditions of Sale is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions of Sale (which will remain valid and enforceable).

Law and jurisdiction

  • This Agreement shall be governed by and interpreted according to the law of England and Wales and all disputes arising under the Agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English and Welsh courts.

General terms

  • Omitted.
  • Day to day communications between the Customer and Supplier may be recorded for quality and training purposes and may be used in the event of a dispute.
  • The Customer is responsible, pursuant to Regulation 9 of the Waste Electrical and Electronic Equipment Regulations 2006 (‘the WEEE Regulations’) for the costs of collection, treatment, recovery, and environmentally sound disposal of any equipment supplied under this Contract which has become waste electrical and electronic equipment. Pendulum IT Ltd and the Customer acknowledge that for the purposes of Regulation 9 this paragraph shall be an agreement stipulating other arrangements for the collection, treatment, recovery, recycling and environmentally sound disposal of WEEE. The Customer shall be responsible for any information recording or reporting obligations imposed by the WEEE Regulations. The Customer shall indemnify and hold harmless Pendulum IT Ltd against all losses, costs, damages, expenses, liabilities and claims caused to and made against Pendulum IT Ltd which would not have been caused or made had the Customer fulfilled its express or implied obligations under this Clause or in connection with the WEEE Regulations.
  • The Parties acknowledge that equipment, and technical information (including, but not limited to, service, technical assistance and training) provided under this Agreement may be subject to export laws and regulations of other countries, and any use or transfer of the such equipment, and technical information must be in compliance with all applicable regulations and international trade sanctions. The Parties will not use, distribute, transfer, or transmit the equipment, or technical information (even if incorporated into other products) except in compliance with all applicable export regulations and trade sanctions.