1.1 In these Conditions unless the context otherwise permits:
“authorised representative” means a person whose job title is that of Director or Managing Director or a person who holds the office of director.
“consumer” shall mean any natural person who in the contract with the Customer is acting for purposes that are not related to his trade, business or profession.
“customer” means the person, firm, company, entity or organisation with whom Mobile Distribution Ltd contracts for the sale of Products and/or supply of Services.
“the conditions/ these conditions” means the standard terms and conditions of sale set out in this document or such replacement standard terms and conditions notified to Customer as are in force at the date of the contract and which at that date appear on Mobile Distribution website www.mobiledist.co.uk
“the contract” means any contract for the purchase and sale or other supply of Products and/or the supply of Services by Mobile Distribution Ltd to a Customer.
“electronic means” means any electronic means including without limit on the Web, by EDI or XML, or any other similar means that may be in use at the time.
“Mobile Distribution” means Mobile Distribution Ltd (registered in England number 10768386) with its registered office at 48-52 Penny Lane, Liverpool, England, L18 1DG.
“products” means any products sold by Mobile Distribution to a Customer.
“services” means any services supplied by Mobile Distribution to the Customer.
“special order products” shall mean products that have been ordered specifically by the customer or configured to customer’s specifications.
1.2 The headings in these conditions are for convenience only and shall not affect their interpretation.
1.3 The conditions shall apply to sales of all products including special order products ordered for shipment or collection. Mobile Distribution reserves the right to apply supplemental or other terms for products to be shipped by Mobile Distribution outside the UK mainland.
1.4. Without prejudice to the application of these conditions additional and more detailed terms may apply for certain products and suppliers including specific terms applicable to special prices offered by suppliers through Mobile Distribution Solutions (“special terms”). These special terms will be made available on Mobile Distribution web site www.mobiledist.co.uk. The special terms may oblige the customer to comply with certain requirements including but not limited to (i) the sale of the products only to specifically named end users; (ii) the disclosure of enduser information to Mobile Distribution and its suppliers for the purpose of end-user verification; and (iii) the submission of copies of end user invoices, end user purchase orders or end user shipping documents to Mobile Distribution and its suppliers. Subject to the special terms applicable for the individual suppliers and products, non-compliance with the special terms may entitle Mobile Distribution and/or its suppliers to reclaim and invoice the customer in full for all discounts, rebates and other special price conditions granted to the customer under the special price. It is the customer’s responsibility to be aware of and adhere to the special terms as published from time to time. By ordering products at special prices offered through Mobile Distribution the customer agrees to be bound by the applicable special terms.
- BASIS OF THE SALE
2.1 All Contracts between Mobile Distribution and a customer shall be governed by these conditions (and, where applicable, any other terms and conditions pursuant to Clause 1.3 and/or Clause 1.4) to the exclusion of any other terms and conditions not accepted in writing by an authorised representative of Mobile Distribution, including without limitation any terms on or referred to in any customer purchase order. In the case of orders placed by electronic means which refer to any terms and conditions of the customer, Mobile Distribution automatic taking on to its system of such order shall amount to a rejection of the customer’s terms and conditions and an offer to supply the products ordered on the basis of these conditions. No variation to these conditions shall be binding unless agreed by letter signed by an authorised representative of Mobile Distribution. It is the customer’s responsibility to be aware of the conditions as published from time to time but Mobile Distribution will use best efforts to notify customer of any material changes to the conditions before they become applicable. The customer’s acceptance of these conditions shall also be made (in respect of the first contract and all subsequent contracts) either by (1) customer providing a purchase order to Mobile Distribution or (2) customer requesting a full invoice or (3) customer accepting products or services from Mobile Distribution, whichever occurs first.
2.2 No employee or agent of Mobile Distribution other than an authorised representative has any authority to make any representation at all concerning products or services and an authorised representative has no authority to make such representation other than by letter (an “authorised representation”) and accordingly the customer agrees that in entering into any contract it does not rely on any unauthorised representation and customer agrees it shall have no remedy in respect of any unauthorised representation.
- CUSTOMER IDENTIFICATION
3.1 In placing an order (including by electronic means) the customer may utilise one account name and other forms of identification including password or other code issued to the customer (together and individually “customer’s identification” or “customer identification”).
3.2 It is the customer’s responsibility to keep the customer’s identification confidential. The customer has the sole responsibility for its customer identification. The customer shall immediately inform Mobile Distribution in case of loss of account number or in case of any abuse or attempted abuse of customer account or other customer identification. The customer agrees that the customer is entirely responsible for use of the customer’s identification and that it is the customer’s responsibility to have in place security measures and procedures to ensure use of its customer identification only by authorised personnel for authorised purposes.
3.3 The Customer agrees that Mobile Distribution is entitled to rely absolutely on any orders placed on Mobile Distribution which have utilised the customer’s identification and to deliver as directed by such orders and to invoice and be paid in respect of such orders.
3.4 The customer agrees that any order placed to Mobile Distribution including by electronic means is the equivalent of a valid and binding purchase order.
3.5 The customer acknowledges that Mobile Distribution cannot guarantee the security of the Internet and the possibility of interception or corruption of data transmitted from the customer to Mobile Distribution using correct customer identification, and that Mobile Distribution is nonetheless entitled to rely on data transmitted in the form it is received at Mobile Distribution.
- MOBILE DISTRIBUTION INFORMATION
4.1 All Product pricing, description, availability and related information (“information”) provided by Mobile Distribution, in any form, is the property of Mobile Distribution or its suppliers. Mobile Distribution hereby grants the customer a limited, non-exclusive, non transferable license to use the Information for its internal use only for the purpose of the customer’s purchases and sales of products sold by Mobile Distribution to it. Mobile Distribution shall be entitled to stop the provision of information at any time without notice. The customer agrees to hold in confidence and not to directly or indirectly use, reveal, report, publish, disclose or transfer to any other person or entity any of the Information or utilise the information for any purpose except as permitted herein. Mobile Distribution makes no warranty, either express or implied on the Information or its accuracy. All information is provided to customer “as is.” If Mobile Distribution provides information to customer by electronic means, customer agrees to update such information regularly to ensure its accuracy. Specifically but without limitation the customer is not entitled to utilise information for any purpose other than in the normal course of business of a reseller and is not entitled to use, reproduce or display the Information in any way, which in Mobile Distribution opinion; (1) would enable it to be identified as information obtained from Mobile Distribution (2) would enable comparison of the Information with other suppliers’ information relating to products or (3) could be damaging to Mobile Distribution business interests.
4.2 Mobile Distribution agrees to hold in confidence and not to directly or indirectly use, reveal, report, publish, disclose or transfer to any other person or entity any customer sensitive information or utilise such information for any external purpose if the customer has notified Mobile Distribution in writing that it is confidential.
- ORDERS AND SPECIFICATIONS
5.1 The Customer shall be responsible to Mobile Distribution for ensuring the accuracy of the terms of any order.
5.2 Mobile Distribution reserves the right to make any changes to the contract due to changes in the specification of the products which are required to conform to any applicable safety or other statutory requirements. These changes will be duly notified to the customer. The customer cannot cancel or reschedule the contract provided the changes do not alter the material terms of the contract. For other types of changes, the possibility of cancellation will be subject to Mobile Distribution discretion and conditions.
5.3 Mobile Distribution is under no obligation to accept the withdrawal of an order or the cancellation of a contract which has been accepted by Mobile Distributions. If Mobile Distribution agrees to accept the customer’s withdrawal of any order or the cancellation of a contract such agreement will only be effected by means of letter, fax or email signed or sent by an authorised representative of Mobile Distributions.
5.4 Notwithstanding any other terms of these conditions it is agreed that the provision or display of product pricing and other Information (as defined in Clause 4.1) by Mobile Distribution to the customer does not amount to an offer by Mobile Distributions to sell such product at that price or on any other terms. Supply of such information is only an invitation to treat. An order by the customer for product or services shall be the offer.
5.5 In the case of orders placed by electronic means only, notwithstanding any acceptance by Mobile Distribution of any offer for any product, if there has been a material or obvious pricing error by Mobile Distribution, Mobile Distribution shall be entitled within 30 days of its acceptance of such offer to either invoice the customer for the customer’s true list price (not exceeding the prevailing market price at wholesale level) of the product at the date of order.
5.6 All Orders require prepayment in full via BACS, CHAPS or Telegraphic transfer unless a credit account is in place. Where the Mobile Distribution has extended credit to the customer the customer agrees to also be bound by our credit account conditions of sale.
5.7 Mobile Distribution will set minimum order levels and charge an additional fee of 10% per item for any order below such levels. Current minimum order levels can be found on our price list(s) & www.mobiledist.co.uk
- PRICE OF THE PRODUCTS
6.1 Subject to the provisions of Clause 5.5 and Clause 6.2:-
6.1.1 Prices for products will be established at the time the order is accepted by Mobile Distribution.
6.1.2 If the customer places an order for products not available in physical stock at the time of order or the customer places an order for scheduled delivery, such orders shall be irrevocable and the price for such products shall be the price established at the time the order or scheduled delivery is accepted by Mobile Distribution.
6.2 Notwithstanding any of the foregoing Mobile Distribution reserves the right to increase its prices after acceptance of an order due to an increase in its supplier’s price to Mobile Distribution or an increase in direct costs to which Mobile Distribution becomes subject (including without limit costs resulting from currency fluctuation) but Mobile Distribution shall only increase its price by such level as is necessary to reflect such increases.
6.3 All prices exclude the cost of delivery to the customer’s delivery point, configuration, fulfilment and other services provided by Mobile Distribution.
6.4 All prices and charges are exclusive of any applicable Value Added Tax or any other form of tax/duty, which the customer will be additionally liable to pay. Unless otherwise stated prices exclude any copyright levies, waste and environmental fees, and similar charges that Mobile Distribution by law or statute may or shall charge or collect upon resale.
6.5 If Customer is offered special pricing for certain orders and such pricing is made available to Mobile Distribution from its suppliers (“special offers”), the customer shall adhere to the terms and conditions of such special bids and agrees to indemnify Mobile Distribution for any claims made against Mobile Distribution by the suppliers for the customer’s noncompliance with the supplier’s terms and conditions. The customer agrees to pay any service fees charged for Mobile Distribution pass-through of special bids and other supplier driven benefits the customer may receive, including any marketing funding, price protection and individual rebates, and agrees that pass-through and payment of such benefits will be subject to Mobile Distribution having received the benefits from its supplier.
- TERMS OF PAYMENT
7.1 All Orders require prepayment in full at the time of order either via BACS, CHAPS, Telegraphic transfer or Credit/Debit card (card payments incur a 2.5% fee). Where Mobile Distribution has extended a credit facility to the customer the customer agrees to also be bound by our credit account conditions of sale.
7.2 The customer shall not set off or withhold any amount due to Mobile Distribution against its receivables.
7.3 The total invoice price may contain commission payment for the product or service. Any commission payment payable to Mobile Distribution will be disclosed to the customer upon request.
7.4 Time of payment shall be of the essence. If the customer fails to make payment in full with their order within 7 days or in the case of credit account holders within 30 days of the invoice date then without prejudice to any other right or remedy available to it Mobile Distribution shall be entitled to:-
7.4.1 Cancel the contract or suspend any services to the customer; Mobile Distribution may at its discretion grant the customer a reasonable cure period before cancelling the contract due to non-payment;
7.4.2 Appropriate any payment made by the customer to such of the products as Mobile Distribution may think fit (notwithstanding any purported appropriation by the customer);
7.4.3 Charge the customer interest (both before and after judgement) on the amount unpaid at the rate of 4% per annum above Santander bank base rate from time to time until payment in full is made such interest being calculated on a daily basis.
7.5 The method of payment for products or services must be acceptable to Mobile Distribution.
8.1 Delivery of the products shall be made by Mobile Distribution or direct from Mobile Distribution suppliers to such place as shall have been agreed between Mobile Distribution and the Customer.
8.2 Mobile Distribution shall be entitled to assume that any person who both reasonably appears and claims to have authority to accept delivery who signs a note in respect of the products on behalf of the customer or the customer’s customer does in fact have the authority.
8.3 Any dates quoted for the delivery of products are approximate only and Mobile Distribution shall not be liable for any delay in delivery of the products however caused.
8.4 Partial delivery is allowed unless otherwise mutually agreed by both parties. Failure by Mobile Distribution to deliver the rest of the products shall not entitle the customer to treat the order as a whole as repudiated.
8.5 Certain products or services may be supplied from outside of the UK direct from Mobile Distribution suppliers; as such this particular type of transaction may take up to 28 days for delivery.
8.6 The customer shall bear all costs associated with the unjustified refusal of delivery of products. If the refusal is made on the grounds that the order was wrongly placed (i.e. wrong product, wrong pricing, etc.) and the refusal is accepted by Mobile Distribution, Mobile Distribution reserves its right to charge accordingly additional fees for return transportation and administrative expenses related thereto, and original carriage costs will not be reimbursed.
- RISK AND TITLE
9.1 All orders will be made EXWORKS. Risk of damage to or loss of products shall pass to the customer upon delivery of the product to the carrier.
9.2 Notwithstanding delivery and the passing of risk of the products or any other provisions of these conditions, title to the products shall not pass to the customer until Mobile Distribution Solutions has received in cleared funds payment in full of:-
9.2.1 The products; and
9.2.2 All other sums which are or which become due to Mobile Distribution.
9.3 Until such time as title to the products passes to the customer the customer shall:-
9.3.1 Hold the products as Mobile Distribution fiduciary agent and bailee; and
9.3.2 Keep the products separate to those of the customer and third parties; and
9.3.3 Keep the products properly stored, protected and insured, and identified as Mobile
Distribution property; and
9.3.4 Accept that products may be labelled as being Mobile Distribution property until paid in full.
9.4 Until such time as the title in the products passes to the customer (and provided the products are still in existence and have not been resold) Mobile Distribution shall be entitled at any time to require the customer to deliver up the products to Mobile Distribution and if the customer fails to do so forthwith to enter upon any premises of the customer or any third party where the products are stored and repossess the products.
- WARRANTIES AND LIABILITY
10.1 Mobile Distribution does not manufacture the products (or where the product comprise computer software does not publish or license the software) and subject to the conditions set out below in this clause Mobile Distribution only sells the products with the benefit of the manufacturer’s or publisher’s or licensor’s (“publisher’s”) warranty (as the case may be). Where used or refurbished phones are supplied, warranty is provided for a period of 3 months from the date of invoice. Any used or refurbished handset deemed to be defective within this period will be subject to the returns procedure stated in these terms.
10.2 Mobile Distribution will accept liability for defective new products only to the extent that Mobile Distribution is entitled to make a claim under the manufacturers, suppliers or publisher’s, dead on arrival, warranty or other defective goods terms and actually obtains from the manufacturer, supplier or publisher a refund, credit, repair or replacement in respect of the defective products. Processing of these defective products shall be made according to the manufacturer’s procedure and the instructions set out in Clause 10.4 below. Mobile Distribution cannot and shall have no obligation to accept a return of and/or grant a credit for product not compliant with the manufacturers or suppliers procedures.
10.2.1 Mobile Distribution shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the manufacturer’s, suppliers or publisher’s instructions (whether oral or in writing), misuse or alteration or repair of the products without Mobile Distribution approval.
10.2.2 Mobile Distribution shall be under no liability under the above warranty if the total price of any invoice relating to the products has not been paid in full.
10.3 All warranties, conditions or other terms implied by common law or statute or otherwise in connection with the sale or supply of goods or services (save, in the case of goods, as to title) are excluded to the fullest extent permitted by law.
10.4 Any claim by the customer which is based on a defect in the quality or condition of a new product shall be notified to Mobile Distribution within 24 hours of delivery. Upon notification of any such claim by the customer Mobile Distribution shall either notify the customer whether the policy of the manufacturer or supplier of the products is to deal with the customer direct (in which case the customer shall deal with the manufacturer direct provided Mobile Distribution gives sufficient details to enable the customer so to do) or shall provide the customer with an RMA number (in which case the customer shall return the products to Mobile Distribution in their original UNMARKED packaging together with details of the RMA number and the customer’s name and address). If Mobile Distribution issues an RMA number to the customer Mobile Distribution shall not send any replacement products (in the case of new handsets only) to the customer until after the original product has been returned to Mobile Distribution. Used or refurbished handsets are subject to repair/replacement or credit at our discretion. Any repair/replacement or credit will only be issued if the terms herein are complied with. Furthermore Mobile Distribution shall be under no obligation to grant a RMA due to variations in the quality or condition of any used handsets. This Clause 10.4 shall only apply to products the customer is entitled to return to Mobile Distribution as provided in these conditions. The issue of an RMA number does not imply acceptance of the stated return reason.
10.5 Mobile Distribution shall not be liable to the customer for any economic or financial loss or damage (including without limit any loss of profits, loss of revenue, liabilities incurred by the customer to third parties relating to products delivered or services rendered by Mobile Distribution, or additional expenses incurred or the cost of time spent) or any consequential, indirect, or special loss or damage costs expenses or other claims for consequential compensation whatsoever (including without limit loss of or damage to data or loss of goodwill) incurred or suffered by the customer and in every case howsoever caused or arising (and whether caused by the negligence of Mobile Distribution its employees or agents or otherwise). Mobile Distribution shall not be liable for any warranty claims made on inactive accounts. An inactive customer account is deemed to be any customer/account that has not made any purchase within the previous 90 days
10.6 Mobile Distribution liability for direct loss or damage arising from damage to tangible property for which Mobile Distribution is liable shall be limited to the VAT exclusive price of the relevant product or service in connection with which any claim for damage or loss is made.
10.7 Mobile Distribution shall not be liable to the customer or be deemed to be in breach of any contract by reason of any delay in performing or any failure to perform any of Mobile Distribution obligation in relation to the products or services if the delay or failure was due to any cause beyond Mobile Distribution reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond Mobile Distribution reasonable control:-
10.8.1 Act of God, explosion, flood, tempest, fire or accident;
10.8.2 Act of terrorism, war or threat of war, sabotage, insurrection, civil disturbance or requisition;
10.8.3 Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of
any governmental or parliamentary or local authority;
10.8.4 Import or export regulations or embargoes;
10.8.5 Strikes, lock outs or other industrial actions or trade disputes
10.8.6 Difficulties of Mobile Distribution Solutions suppliers in obtaining raw materials, labour, fuel,
parts or machinery.
10.9 If customer is selling products or services purchased from Mobile Distribution to a third party the customer shall ensure the third party is given sufficient and appropriate information and descriptions as to the product’s or services’ fitness for the purpose for which the products or services are normally used and any particular purpose the third party has required or agreed with the customer. The customer shall not remove or replace any labelling, user manuals, components or other material from the product as supplied by the manufacturer or Mobile Distribution, and shall not in its advertising, marketing or labelling provide any public statements on the specific characteristics of the products or services on behalf of Mobile Distribution, the manufacturer or their representatives.
10.10 The customer accepts liability for the products’ conformity with the customer’s consumer contract (‘conformity’ as defined by the EU Directive 1999/44/CE of May 25, 1999 and legislation implementing the Directive), and the customer shall not offer any warranties or representations to the Consumer as to the quality, fitness for purpose of the products without the manufacturers’ express consent. The customer agrees to hold harmless and indemnify Mobile Distribution and the manufacturers against any loss, costs, and damages caused by the customer’s acts or omissions, and non-compliance with the obligations set forth in clause 10.9, clause 10.10 and clause 10.11. If the customer is held liable to the consumer caused by a product’s lack of conformity resulting from an act or omission by the manufacturer or Mobile Distribution, or any other intermediary, the customer may by law or statute be entitled to pursue remedies against Mobile Distribution, the manufacturer or any other person liable in the contractual chain. Provided the customer is legally entitled to pursue such remedies and Mobile Distribution is held liable by a competent court of law, Mobile Distribution liability to the customer shall be limited to an amount corresponding to the customer’s original purchase price of the product or service giving rise to the claim by the consumer.
10.11 Should the Product warranties offered by the manufacturers or Mobile Distribution under these conditions be restricted compared to the guarantees the consumer is entitled to under law, the customer agrees to take sole responsibility towards the consumer for the excess liability and waives any claim it may have against Mobile Distribution in respect of such excess.
10.12 The products are subject to the intellectual property rights of Mobile Distribution suppliers (i.e. the product manufacturers). The customer is not authorised to alter, cover, or remove any reference to such intellectual property rights on the products, and shall adhere to any guidelines and restrictions provided by Mobile Distribution suppliers with respect to such rights. Mobile Distribution shall have no duty to defend, indemnify or hold customer harmless from and against any or all claims brought against the customer or damages and costs incurred by customer arising from the infringement of a third party’s intellectual property rights, except to the extent Mobile Distribution supplier is offering such defence or indemnification to Mobile Distribution on a pass through basis. Upon threat of claim or claim of infringement, Mobile Distribution may, at its option (i) procure the right to continue using any part of product, (ii) replace the infringing product with a non-infringing product of similar performance, or (iii) refund to the buyer the purchase price paid by the buyer for the infringing product. Notwithstanding any other terms or conditions to the contrary Mobile Distribution liability for infringement of intellectual property rights under these conditions shall not exceed the customer’s purchase price for the infringing products.
- RETURNS AND REPAIRS
11.1 Except for special order products, which are expressly excluded from the terms of this clause 11 and cannot be returned under any circumstances, if Mobile Distribution agrees to accept the return of any products (other than for the purpose set out in clause 10 above) or agrees to carry out repairs to other products which have not been purchased from Mobile Distribution or agrees to repair products which are out of warranty the customer shall not send the same to Mobile Distribution unless they are accompanied by a RMA number previously advised by Mobile Distribution customer services department and a copy of the relevant sales invoice and are sent in their original UNMARKED packaging.
11.2 The customer shall notify Mobile Distribution within 24 hours of any delivery discrepancies, other than for the purposes set out in clause 10. If Mobile Distribution issues a returns number (RMA), Products must be returned to Mobile Distribution Solutions within 5 working days of the date thereof.
11.3 If Mobile Distribution has agreed to carry out repairs or to replace products (or any parts thereof) other than for the purpose set out in clause 10 above the customer irrevocably authorises Mobile Distribution to carry out such repairs or provide such replacements as shall place the products in proper working order.
11.4 Mobile Distribution shall accept no liability for any damage to or loss in transit of products returned whether under this clause or under clause 10 above until delivery is accepted by an authorised person.
11.5 If Mobile Distribution has agreed to accept the return of products, other than for the purposes set out in clause 10 above or for the purpose of carrying out any other repair or replacement, the products must be returned in their original packaging and in a clean resalable condition, with all security seals intact and will be subject to a re-stocking fee at Mobile Distribution discretion, failing which Mobile Distribution will refuse to accept the same and the customer shall remain liable for the price thereof and for any fees relating to the return of the Products to the customer.
12.1 The customer is not allowed for any purpose whatsoever to use Mobile Distribution logos and trade mark without prior written approval from an authorised representative. 12.2 The customer agrees that Mobile Distribution may use customer data, including any personal data, for the purpose of marketing and sales of products, and the customer agrees to Mobile Distribution collection, storage and use of such data for this purpose. Personal data will not be shared with third parties. The customer agrees to receive product information and promotions and other communications from Mobile Distribution by e-mail and other communication tools.
12.3 Mobile Distribution reserves the right to close any credit account without notice and or reason.
12.4 Mobile Distribution reserves the right to refuse to supply to countries deemed a high risk of fraud.
12.5 Mobile Distribution reserves the right to supply mobile handsets obtained from outside of the EU.
12.6 Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice.
12.7 No waiver by Mobile Distribution of any breach of the contract by the customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.8 If any provision of these conditions is held by any authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provisions in question shall not be affected thereby.
12.9 The contract shall be governed by the laws of England and the Customer submits to the exclusive jurisdiction of the English Courts.