TERMS AND CONDITIONS OF SALE
In these Conditions:
Authorised Officer :
a person whose position with WL is that of Chairman, Director, Customer Services Manager or Credit Manager of WL
an Order accepted by WL for which the Goods are not available at time of Order placement and which are still to be received by WL from its main supplier
is the person (including a natural person, corporate or unincorporated body, whether or not having a separate legal personality) who places an Order with WL for the purchase of the Goods or the provision of the Services and whose order is accepted by WL in accordance with these Conditions
the amounts payable for the Goods or the Services (excluding Cloud Services), as set out in the relevant Order accepted by WL
Cloud Charges :
the amounts payable for the Cloud Services (excluding all other Services), as set out in the relevant Order accepted by WL
Cloud Services :
any cloud computing services provided by WL under an Order including without limit infrastructure as a service, platform as a service and software as a service
is each individual contract between WL and the Buyer for the purchase and sale of the Goods and/or Services in accordance with these Conditions
has the meaning set out in the Data Protection Legislation
Data Protection Legislation :
the Data Protection Act 1998 or any subsequently enacted data protection legislation
Data Subject :
an individual who is the subject of Personal Data
the delivery of the Goods either (i) by WL’s carrier, completion of which being WL’s carrier's notification to the Buyer that the Goods are ready to be off-loaded at the address supplied by the Buyer or(ii) by Buyer’s carrier, completion of which being WL’s notification to Buyer that the Goods are ready for collection
Electronic Means :
any electronic means including without limit on the Web, by EDI or XML, or other platform utilised for the placing of Orders
any third party to whom the Buyer resells theGoods or Services (for the avoidance of doubt, such third party can be another reseller)
are any hardware or software, whether packaged, licensed or as a service, and instalments of the Goods or any parts of them sold by WL to the Buyer in accordance with the Conditions;
Insolvency Event :
any one or more of the events listed at clauses 2.2.2 – 2.2.8 (inclusive)
is the Buyer’s order for the Goods or Services (including Cloud Services) placed with WL (including Backorders)
Personal Data :
has the meaning set out in section 1(1) of the DPA and relates only to personal data, or any part of such personal data, in respect of which the Buyer is the Data Controller and in relation to which WL is providing services under the Contract.
Processing and process :
have the meaning set out in section 1(1) of the DPA
any customisation, implementation, installation or configuration services (or part of them) relating to the Goods to be provided by WL to the Buyer from time to time under these Conditions;
Third Party Provider:
any third party who provides cloud based or similar product and/or services to WL for resale from time to time
is Westcoast Limited of Arrowhead Park, Arrowhead Road, Theale, Reading, RG7 4AH.
The headings in these Conditions are included for convenience only and shall not affect the interpretation or construction of these Conditions.
THE BUYER’S ATTENTION IS DRAWN IN PARTICULAR TO THE PROVISIONS OF CLAUSES 10 AND 11.
1. BASIS OF SALE
1.1 All Contracts shall be governed by these Conditions (and where applicable any other terms agreed in writing by an Authorised Officer of WL) to the exclusion of any other terms and conditions, including without limit any terms on or referred to in any Buyer purchase order or other Buyer documentation. In the case of Orders placed by Electronic Means which refer to any terms and conditions of the Buyer, WL’s automatic taking on to its system of such order shall amount to a rejection of the Buyer’s terms and conditions and an offer to supply the Goods ordered on the basis of these Conditions.
1.2 No variation to these Conditions shall be binding unless agreed in writing by an Authorised Officer of WL.
1.3 Subject to clause 1.2, WL's employees or agents have no authority to make any representations concerning the Goods or Services. In entering into the Contract the Buyer acknowledges that it does not rely on, and irrevocably waives any claim it may have for damages for or right to rescind the Contract for any such representations (unless made fraudulently).
1.4 Any advice or recommendation for the Goods given by WL or its employees or agents to the Buyer or its employees or agents not confirmed in writing by an Authorised Officer is followed or acted upon entirely at the Buyer's own risk and WL shall not be liable for any such advice or recommendation.
1.5 All references in these Conditions to WL agreeing, approving, waiving or specifying a matter apply only if such is confirmed in writing by an Authorised Officer.
1.6 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by WL shall be subject to correction without any liability on the part of WL.
1.7 It shall be a condition of any quotation and subsequent Contract (if applicable) that the information provided by the Buyer is correct, accurate, not misleading and a complete response to WL's request(s) when provided and remains so for at least until the later of the date when the quotation lapses or the relevant Goods and/or Services are delivered.
1.8 Any quotation for the Goods given by WL shall (i) not constitute an offer and (ii) only be valid for a period of 5 business days from its date of issue.
1.9 Any Order constitutes an offer by the Buyer to purchase the Goods incorporating these Conditions. Orders accepted by WL are accepted solely subject to these Conditions and the Contract shall come into existence when WL accepts the Order in writing or by processing the Order for delivery (whichever is earlier).
2. CANCELLATION OF ORDERS
2.1 No accepted Order may be cancelled by the Buyer unless agreed in writing by WL if so agreed, the Buyer shall indemnify WL in full against all loss (including loss of profit), costs, damages, charges and expenses incurred by WL as a result of cancellation.
2.2 WL shall have the right immediately to cancel or to suspend any accepted Order or any delivery to be made under the Contract without any liability to the Buyer if:
2.2.1 the Buyer fails to make any payment when due or breaches any provision of the Contract and the Buyer has failed to remedy such breach within 7 days after receipt of notice in writing from WL requiring the Buyer to do so;
2.2.3 the Buyer (a) negotiates with its creditors for rescheduling of its debts, (b) makes a proposal to or compounds with its creditors in respect of its debts other than solely by way of solvent amalgamation or reconstruction or (c) makes an application to court for protection from its creditors generally; or
2.2.4 the Buyer passes a resolution for winding-up or for the appointment of an administrator, or a liquidator or a winding-up order is made other than solely in relation to a solvent amalgamation or reconstruction (or in the case of an individual is made bankrupt); or
2.2.5 an administrator, receiver or administrative receiver is or is likely to be appointed in relation to the Buyer or any of its assets; or
2.2.6 any creditor of the Buyer attaches, takes possession of, or any distress, execution or similar process is levied or enforced against, all or any part of the Buyer’s assets, and such attachment or process is not discharged within ten Business Days
2.2.7 the Buyer ceases, or threatens to cease, to carry on business; or
2.2.8 WL reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly; or
2.2.9 the Buyer commits or is a party to dishonest or fraudulent conduct in relation to the Contract.
2.3 If clause 2.2 applies then, without prejudice to any other right or remedy available to WL, WL shall be entitled to do any one or more of the following:
2.3.1 cancel each and every Contract yet to be performed (in whole or in part);
2.3.2 suspend any further deliveries under each and every Contract without liability to the Buyer;
2.3.3 immediately revoke any and all credit extended to the Buyer on such terms as WL shall in its sole and absolute discretion determine;
2.3.4 reduce or cancel all quantity and other discounts offered to the Buyer; and
2.3.5 if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
3.1 Unless otherwise agreed in writing with an Authorised Officer the costs of packing and Delivery shall be for the Buyer's account. If WL pays for or incurs all or part of such costs, it shall invoice its costs so incurred to the Buyer at the date of dispatch.
3.2 The Buyer warrants the details of any address for Delivery stipulated by the Buyer (including those of End Users). WL reserves the right to invoice the Buyer for any losses incurred by WL for failed or re-routed deliveries as a result of inaccurate information provided by the Buyer (including where recipient is not available/unwilling to accept the Goods).
3.3 Any Delivery dates given are estimated dates only and time is not of the essence for Delivery. Changed specifications or instructions may result in revised estimated Delivery times.
3.4 The Goods may be delivered in instalments. Each delivery shall constitute a separate Contract and failure by WL to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
3.5 If the Buyer (i) arranges collection of the Goods from WL and the Buyer's carrier fails to take receipt of the Goods after WL has notified the Goods are ready for collection or (ii) fails to give WL adequate Delivery instructions or (iii) has requested a delay in Delivery or (iv) is unable to give access to its premises for the purposes of Delivery or installation then WL may at the risk and expense of the Buyer:
3.5.1 store the Goods until actual Delivery and invoice the Buyer for all such costs of storage and re-Delivery; or
3.5.2 sell the Goods at the best price readily obtainable and (after deducting all storage, selling and other expenses) account to the Buyer (if available) or charge the Buyer for any shortfall (as applicable).
3.6 Where Goods are to be exported out of the United Kingdom by either (i) WL to the Buyer or (ii) by the Buyer itself (subject to any special terms agreed in writing between the Buyer and WL and notwithstanding any other provision of these Conditions):
(i) The terms of purchase of the Goods will be subject only to warranty provided by the original equipment manufacturer (“OEM”) and the Buyer shall be solely responsible for ensuring that it fully understands and is aware of such warranty terms;
(ii) The Buyer shall ensure that it complies with any export controls as notified by WL, the OEM or a third party or as contained within any supporting documentation provided with the Goods;
(iii) The relevant tax legislation will be applied in accordance with and under the United Kingdom legislation at the time of the contract;
(iv) The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any import taxes or duties thereon;
(v) Unless otherwise agreed in writing between the Buyer and WL, delivery terms of the Goods shall be ‘Delivered at Place’ (as per Incoterms 2010) and WL shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979;
(vi) the Buyer shall be responsible for arranging for testing and inspection of the Goods at WL's premises before shipment. WL shall have no liability for any claim in respect of any defect in the Goods, which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit;
(vii) The Buyer shall not be entitled to withhold payment of the price for the Goods due to the Buyer's failure to comply with the provisions of this clause; and
(viii) The Goods will be packaged in accordance with WL's standard practice, and the packaging shall meet any reasonable requirements stipulated in advance by any independent contractors or shippers.
3.7 The Buyer's failure to make due payment in respect of any deliveries or instalments under any Contract shall entitle WL to delay, suspend or cancel further deliveries in whole or in part at its option.
3.8 Where the Buyer fails to take Delivery of the whole quantity of the Order at the due time, any discount or other allowance in respect of the Goods, which the Buyer is or would be entitled to shall be forfeited.
3.9 Where WL has agreed to ship Goods or perform Services direct to End User on behalf of Buyer any such shipment or performance shall be deemed to be Delivery to Buyer and any refusal by the End User to accept Delivery or performance shall be deemed to be a refusal by Buyer. It shall be Buyer’s obligation to report any delivery discrepancies in accordance with this clause 3 when Goods are shipped direct to End User or when Goods are sent onto End User by Buyer.
4. ACCEPTANCE AND RETURNS PROCEDURE
4.1 WL shall not be liable in respect of any damage to the Goods, discrepancy in the Order, shortage in the Goods Delivered, loss of the Goods in transit or any claim that the Goods delivered or collected do not otherwise comply with the Contract other than in accordance with this Condition and warranty clause 4 as stated below.
4.2 Damage, discrepancies, shortages and invoice queries:
(i) The Buyer shall be responsible for inspecting the boxed / parcel contents containing the Goods on Delivery to check the Goods for damages, discrepancies and shortages.
(ii) The invoiced Charges shall, in the absence of a manifest error, be deemed accepted by the Buyer unless the Buyer notifies WL customer services in writing within 14 days of the date of the invoice.
(iii) The Buyer shall notify WL customer services in writing within 48 hours of Delivery of any short Deliveries, damaged Goods Delivered or any non-shipment of Goods detailed on the proof of Delivery.
Save for bona fide notifications received by WL under 4.2(ii) and 4.2(iii) above, WL shall have no liability whatsoever to Buyer in respect of the matters noted above.
4.3 Goods that fail on installation ("DOAs"): WL operates a returns procedure for DOAs. The DOA returns procedure may vary depending on the OEM of the Goods and will be notified to the Buyer upon the Buyer notifying WL (within 14 days of Delivery) that the Goods have apparently failed on installation.
4.4 Goods that fail after installation ("Faulty Goods"): In no circumstances may the alleged Faulty Goods be returned to WL without WL’s prior written consent. Where Goods are returned a handling charge may be levied at WL's discretion and shall be either deducted from any credit allowed by WL (should the Goods be accepted at WL’s discretion as Faulty Goods) or be payable to WL by the Buyer upon demand. The Buyer must notify WL immediately of the fault becoming apparent and follow WL’s instructions in relation to the fault.
4.5 General provisions relating to DOAs and Faulty Goods:
(1) The Buyer shall pay all WL's reasonable costs and expenses if the Goods suspected to be DOA or Faulty Goods by the Buyer prove not to be DOA or Faulty Goods (at WL’s sole discretion). (2) Any returns shall be subject to and the Buyer shall comply with WL’s returns authorisation procedures. (3) DOA and Faulty Goods shall be dealt with in accordance with the applicable OEM’s DOA or Faulty Goods procedures and the Buyer shall comply with the same. (4) The Buyer shall be responsible for all transportation and insurance costs relating to returned Goods. (5) The Buyer shall have no right to return any Goods delivered in accordance with the Contract. (6) Goods must be received by WL within 14 days of WL issuing a returns authorisation number to Buyer.
4.6 Where a return under this clause 4 is approved in writing by WL, the Goods (or part thereof) to be returned must be delivered to WL's premises in its original packaging together with supporting documentation confirming the alleged fault and quoting the relevant returns number. In the event the Buyer fails to comply with this clause 4.6, WL will be entitled to levy a handling fee as applicable in the circumstances.
4.7 WL shall be under no obligation to accept return of any Goods other than as provided in the warranty clause below.
5.1 All WL prices for Goods and/or Services ("Price(s)") are quoted subject to (i) acceptance within any period specified and (i) any increase which may occur as a result of factors falling outside the control of WL, which without limitation, shall include any of the following circumstances:
(a) where the Buyer has requested (whether before or after a Contract has been made) any variation whatsoever to the quantity, capacity, form, content, style or description of the Order or Goods and/or Services, or has requested an earlier or a later Delivery date to that originally requested; or
(b) where steps are taken by WL to comply with any statutory provisions from time to time in force, and any increases in the price charged to WL of any equipment or goods bought in from WL’s suppliers in order for WL to fulfil the Contract; or
(c) where the supply of the Goods or the provision of Services is suspended, varied or otherwise delayed by any acts or omissions of the Buyer.
5.2 Unless otherwise stated, the Price does not include the costs of Delivery and VAT and any other applicable customs or excise duties or taxes (where applicable) and these will be added to all invoices at the rate ruling at the date of despatch.
6.1 Payment of the Charges or any part thereof and any other charges due under the Contract must be made by the Buyer within 28 days from the date of WL's invoice (unless otherwise specified in writing by an Authorised Officer).
6.2 Should the Buyer fail to make payment by the due date, WL shall be entitled to charge interest on the overdue amount at the rate of 4% above Barclays Banks’ base rate from time to time. Such interest shall accrue on a daily basis from the due date until the actual date of payment (whether before or after judgment).
6.3 The Buyer shall make all payments in pounds sterling immediately when due without set off, deferment, deduction or withholding whatsoever (whether on account of any claim or counterclaim or otherwise). Where payments in an alternative currency are authorised in writing by the Authorised Officer prior to the Contract being concluded, such payments shall be made by telegraphic transfer to the account to be designated by the Authorised Officer from time to time.
6.4 The time of payment shall be of the essence of the Contract.
6.5 The Buyer shall indemnify WL against the total costs incurred (without limitation) by WL arising out of the Buyer's breach(es) of these Conditions.
6.6 On the happening of a "Relevant Event" WL shall be entitled in its sole and absolute discretion to alter its terms of payment or to alter any credit terms which may have been granted. For the purposes of this clause 6.6, a "Relevant Event" shall be defined as being:
(i) where WL is notified or otherwise reasonably believes that the Buyer's credit record has worsened to a level unacceptable to WL; or
(ii) where WL in its sole discretion deems the Buyer's financial position to be unacceptable; or
(iii) where WL's trade indemnity insurers require such alteration.
6.7 Notwithstanding clause 6.6, WL reserves the right to withdraw any credit facilities afforded to the Buyer at any time, without notice.
6.8 In the event that the trading relationship between the Buyer and WL is terminated for whatsoever reason then all sums due by the Buyer shall immediately become due and payable.
7. PRICES AND PAYMENT FOR CLOUD SERVICES
7.1 Clause 6 applies in relation to Cloud Services in addition to the terms contained in this clause 7. In the event of conflict between clauses 6 and 7 in relation to Cloud Services, clause 7 shall take precedence.
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