Proximitum Ltd
Terms and Conditions of Trading
1. Definitions
(1) "Business Customer" means a customer who is not a Consumer.
(2) "Consumer" means an individual acting for purposes which are wholly or mainly outside that individual’s trade, business, craft or profession.
(3) "Proximitum" means Proximitum Limited also referred to as "we" or "us" in these terms and conditions.
(4) "Catalogue" means the catalogue of products and services offered by Proximitum.
(5) "Force Majeure" means any cause affecting the performance by Proximitum of its obligations arising from acts, events, omissions, happenings or non-happenings beyond its reasonable control including (but not limited to) governmental regulations, fire, flood or any disaster or industrial dispute affecting a third party.
(6) "Normal Working Hours" means 9 am to 5.30 pm on a Working Day.
(7) "Working days" means Monday to Friday, excluding Bank or other Public holidays.
Please note that special terms apply to Consumers, which prevail over the other provisions of these terms and conditions. Customers who are Consumers are referred to Clause 13.
2. Orders
(1) All contracts of sale made by Proximitum shall be deemed to incorporate these terms and conditions, which shall prevail over any other terms from the party ("the Customer") with whom Proximitum is dealing. Cancellation of orders by business to business customers is not accepted as many orders are despatched on
the same day the order is placed. Cancellation of orders by Consumers will be accepted in accordance with the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013. Nothing in these terms and conditions is intended to impinge upon a Consumer's statutory or contractual rights to reject
faulty goods.
(2) All orders are subject to acceptance and to availability of the goods ordered: Proximitum is entitled to
refuse any order placed by you.
(3) You undertake that:
(a) all details you provide to us for the purpose of purchasing goods or services offered are correct and You, the Customer, accepts that full liability for orders placed using a valid PO provided by You and not Proximitum and
(b) the method of payment is your own or your company's, that you are authorised to make payment, and that there are sufficient funds or credit facilities to cover the cost of any goods or services you order from us. We reserve the right to obtain validation of your credit status before providing goods or services.
(4) Please note, Proximitum may record and / or monitor inbound and outbound calls and electronic traffic for training purposes.
(5) All software is sold subject to the software publisher’s end user licence agreement (EULA), the terms of which the Customer agrees to adhere to.
3. Prices
(1) Goods and services are invoiced at the price prevailing at time of acceptance of order. VAT is charged at the rate applicable at the time of invoicing or otherwise in accordance with the law.
(2) Proximitum reserves the right to modify the prices from time to time.
(3) Any prices quoted by Proximitum in local currency may be adjusted by Proximitum due to fluctuations in the US Dollar exchange rate.
(4) All amounts payable here under are payable in full and remitted back to Proximitum without offset or deduction for taxes (including withholding tax) and custom duties.
4. Delivery, Title and Risk
(1) Proximitum shall use reasonable endeavours to despatch goods by the date agreed with the customer, but does not accept liability for failure to deliver within the stated time where this is caused by circumstances beyond our reasonable control, such as delays caused by delivery companies or manufacturer lead times. If a
delay is likely, we shall contact the customer and advise of the delay. A customer who is a Consumer shall be entitled to cancel an order when advised of a delay if the revised delivery date is not acceptable.
(2) In the case of a Business Customer, if Proximitum is unable to deliver the goods within 30 days of the agreed delivery date, the Customer will, as its sole remedy, be entitled to cancel the order and require any monies paid to Proximitum in respect of that order to be refunded. In order to cancel, the Customer must
send written notice of cancellation to Proximitum after the above date but before delivery of the goods or notification from Proximitum that the goods are ready for delivery. This Clause does not apply to Consumers.
(3) In the case of Business Customers, Proximitum does not accept liability for shortages or damage to deliveries unless the Customer notifies Proximitum of the shortage or damage in writing within 48 hours of receipt of the delivery. Consumers should notify shortages or damage within a reasonable period of
becoming aware.
(4) Business Customers are required to be able to accept the goods when they are ready for delivery within Normal Working Hours.
(5) Delivery is deemed to take place when the goods are delivered to the Customer's nominated address, whereupon the risks of loss, breakage and all damage and all other risks shall pass to the Customer.
(6) Title in the goods shall pass to the Customer on delivery.
(7) If the Customer cannot accept delivery, Proximitum may at its option: (a) store and insure the goods at the Customer's expense and risk or (b) sell the goods at the best price reasonably obtainable and (after deducting reasonable storage insurance and selling costs) pay to the Customer any excess over the sale price
or charge the Customer for any shortfall or (c) re-arrange delivery provided that Proximitum may charge the
Customer for the additional delivery costs incurred.
(8) The Customer may request a Proof of Delivery, provided that this request is made in writing within 3 months of the date of delivery and Proximitum shall use reasonable endeavours to provide such proof. Thereafter, delivery shall be deemed to have been successfully completed.
(9) Upon delivery of the goods, the Customer will be asked to sign a Proof of Delivery to acknowledge safe receipt. It is the responsibility of the Customer to ensure that the number of packages delivered corresponds with the number stated on the delivery note. Where a discrepancy occurs or where there is evident damage to the packaging, this should be noted on the Proof of Delivery. Proximitum shall not be liable for
discrepancies or damage evident on delivery where the Customer accepts delivery and signs the Proof of Delivery without amendment.
5. Payment
(1) Payment is due on presentation of invoice unless credit terms have been agreed in writing with Proximitum. Proximitum shall invoice Customer: on acceptance of the Customer’s order in respect of software; on shipment in respect of hardware; on completion of professional services or monthly in arrears in respect of recurring services unless otherwise agreed in writing and in advance in respect of maintenance and support services.
(2) If payments not made on the due date, Proximitum will be entitled to charge interest daily on the outstanding balance at the statutory rate and in any event an administration fee in the sum of £50 shall be applied to each overdue invoice.
6. Product specifications
(1) Proximitum makes every effort to supply the goods as advertised but reserves the right to supply the goods subject to minor variations in actual dimensions and specifications where these are changed by the manufacturer.
(2) If Proximitum cannot supply the goods ordered by the Customer, Proximitum reserves the right to offer goods of equal or superior quality at no extra cost. In such a case, if the Customer does not wish to accept the alternative goods offered, he or she may cancel the order and require the refund of any money paid to Proximitum in respect of that order, including carriage charges. This shall be the sole remedy of the Customer in these circumstances.
7. Trade names and Trade Marks
(1) Trade names and marks (other than Proximitum's) are not always indications of the actual manufacturer of a particular product and may rather be indicative of general use systems and machines associated with such products.
(2) In the case of component purchases, Customers requiring a particular brand of product should, before placing an order, check with Proximitum the identity of the manufacturer of component it is proposed to purchase.
8. Warranties and Returns
Please note that special terms apply to Consumers who wish to return goods, which prevail over the provisions of this Clause 8. Customers who are Consumers are referred to Clause 13.
(1) Proximitum is committed to providing our customers with the highest quality products and service. However, on rare occasions, products may be found to be faulty or defective. In such cases we offer the returns facilities described below.
(2) Unless otherwise stated in the manufacturer's documentation, all goods delivered to a UK mainland address carry a 12-month manufacturer's warranty.
(3) If you purchase goods in the course of your business, the following provisions of this Clause shall apply. Other than the express provisions set out in these terms and conditions, all other terms and the implied terms or warranties relating to the supply of goods are excluded to the fullest extent permitted by law. Goods are not tested or sold as being fit for any particular application or for use under specific conditions, unless
expressly agreed in writing.
(4) If you purchase services in the course of your business, the following provisions of this Clause shall apply. Proximitum shall use its skill and expertise to carry out any contracted works (the "Service(s)") to a standard equivalent to that of a competent computer professional, and shall warrant our work as free from defects, for a period of 30 days after completion. In particular, we cannot be held responsible for any fault or damage not caused by Proximitum services' engineers or its contracted agents. In the event of a claim arising relating to the level of skill and judgement applied in the course of providing Services, Proximitum reserves
at its sole discretion the right to appoint an independent expert in the field to appraise the work carried out in the execution of the Service(s). Additionally, Proximitum cannot be held responsible for equipment installed or configured when the equipment has subsequently been altered or configured by persons other than Proximitum. Except as set out here, all other express or implied terms or warranties relating to the Services are excluded to the fullest extent permitted by law.
(5) Subject to the rights of Consumers to return goods for refund under The Consumer Contracts Regulations 2013 and The Consumer Rights Act 2015 (see Clause 13), Proximitum does not sell products on a trial basis. Customers are strongly advised to check suitability and specifications of products before ordering. In some instances, Customers may benefit from special price discounts issued by a manufacturer specifically for their benefit. Such goods are not returnable to the manufacturer and may not be sold to other customers. Accordingly, orders for such goods cannot be cancelled and Proximitum can only accept a return of such Goods where they prove to be defective and the Goods are returned for repair or replacement.
(6) In the event that Proximitum, at its discretion (unless the Consumer Contracts Regulations 2013 or Consumer Rights Act 2015 apply, see Clause 13), agrees to accept the return for credit of unwanted products, the goods must be returned with Proximitum's prior written agreement within 14 days of delivery. The goods must be unopened and in perfect re-saleable condition.
(7) Subject to testing to verify any alleged fault, we will accept the return of defective goods for full refund or replacement at our option, if, but only if, the goods are returned within 14 days of delivery. Consumers who wish to return defective products are not obliged to follow the processes set out below, but are
recommended to do so as this helps us to provide a more efficient returns service.
(a) Proximitum's technical support staff or Customer Support staff, as appropriate, will advise you of which method of delivery to use to return the products. Depending on the nature of the product purchased, we will either arrange a courier collection, or request that you return the product directly to us. If the goods are found on inspection to be defective, the cost of returning the item will be refunded to you. Authorised product returns must be sent to: Customer Returns, Proximitum, Unit F, Barwell Business Park, Chessington, Surrey, KT9 2NY.
(b) Proximitum offers a "no charge" collection, repair and delivery service (on the UK mainland only) for hardware which is shown to be faulty provided that the fault is reported within 14 days of delivery. If we have arranged for a courier collection of your product, we are unable to specify the collection time, and it is
your responsibility to ensure that someone will be present at the collection address when the courier arrives.
(c) All returned goods (except those returned under Clause 13) must be accompanied by Proximitum's Returns Authorisation number ('RA Number') which can be obtained by contacting Proximitum Servicedesk on 0845 68639000. Returned goods will not be accepted without an RA Number. Do not write directly on the manufacturer's packaging. Please write the RA number on the address label provided with the Returns Authorisation and attach it to the returned package. Any defacement of the manufacturer's packaging or damage caused by inadequate packaging may result in the rejection of the return or an additional restocking fee, at Proximitum's sole discretion.
(d) Proximitum cannot accept liability for packages damaged during transit. It is the Customer's responsibility to wrap the product adequately to prevent damage.
(e) Proof of postage is not proof of delivery and you are therefore strongly advised to send your package by recorded delivery, registered post or courier, and to insure the goods for their full value.
(f) On receipt of the returned product, we will test it to identify the fault you have notified to us.
(g) If following the testing process, the product is found to be in good working order without defect, we will return the product to you, and the carriage costs of this return will be your responsibility. Please note that if you have, in the meantime, required us to provide you with a replacement product before completion of the testing process, you will have to pay for this product also. This Clause does not apply to Consumers returning goods pursuant to Clause 13.
(h) Customers who wish to make a warranty claim must comply with the manufacturer's instructions and warranty procedure. In order to resolve your problem as quickly as possible, we may refer you to the product manufacturer who will deal directly with the return. In these instances, we will provide you with the contact
information for the relevant manufacturer. If you are a consumer, this does not affect your statutory rights. (i) This warranty shall not apply if the goods have been worked upon, altered or damaged in any way by the Customer or its employees or agents, or to goods not used in accordance with the manufacturer's instructions.
(j) No software on which seals have been broken can be returned for credit. If any software discs are faulty, the manufacturer will replace them. If you are a consumer this does not affect your statutory rights. Please note Software Licences are non-returnable unless the software is materially non-compliant with its
specification or the physical media on which it is supplied is defective.
9. Proximitum's liability
(1) In its dealings with Business Customers, Proximitum shall under no circumstances be liable for any consequential or indirect damage or loss, however caused, including (but not restricted to) loss of business or profits, loss of goodwill, damage to trading relationships loss of data and other financial loss. ("Financial loss" in this sense does not refer to the price you have paid for the goods, which we may be liable to refund to you, in whole or in part, if the goods are faulty or do not comply with their description). Proximitum's liability in respect of all other losses shall be limited to the invoiced amount of the relevant order.
(2) Nothing in this agreement shall limit Proximitum's liability for death or personal injury caused by its negligence.
10. Health and Safety
(1) Proximitum confirms that the goods it supplies as a distributor do not present a hazard to health and safety
(a) when properly used for the purpose for which they are designed; and
(b) if the Customer takes reasonable and normal precautions in their use.
11. Force Majeure
Where, in spite of its reasonable efforts, Proximitum is unable to perform an obligation due to circumstances beyond its reasonable control, it shall not be deemed to be in breach of its contract with the Customer.
12. Consumer Regulations
(1) Contracts for the purchase of goods by a Customer not acting in the course of a business (a Consumer) and made over the telephone or through the Proximitum website, or by mail order, are, with the exception of certain excepted contracts, subject to the Consumer Contracts (Information, Cancellation and Additional Charges) Regulations 2013, the Consumer Protection (Amendment) Regulations 2014 and the Consumer Rights Act 2015 (“the Regulations”).
(2) If the Regulations apply, Customers may cancel goods purchased from Proximitum by sending a written notice of cancellation (in the form made available to Consumers by Proximitum) by post or hand delivery addressed to ServiceDesk at Barwell business park, Proximitum limited, Chessington, Surrey, KT9 2NY.
(3) The notice of cancellation must be delivered within fourteen (14) calendar days of the day after date of delivery of the goods.
(4) The Customer will be responsible for the cost of returning the goods if he or she exercises this right of cancellation under the Regulations. If the Customer does not actually return the goods to Proximitum, the Customer is under a duty to make the goods available for collection at the Customer's expense from the address to which they were delivered.
(5) The Customer is under a duty to retain possession of the goods whilst awaiting return to Proximitum and to take reasonable care of them during this period. The Customer will be liable for any loss of or damage to the goods if he or she fails to comply with this obligation.
(6) To be entitled to a refund, the Customer must return all cancelled goods within 14 calendar days from the date of cancellation.
(7) A refund will be made to the Consumer Customer only after receipt by Proximitum of the cancelled goods (or evidence is provided to Proximitum of such return).
(8) All refunds will be subject to a deduction of an amount for any diminished value in the returned goods.
(9) Refunds for Goods which are found to be defective shall be provided subject to and in accordance with the Consumer Rights Act 2015.
(10) Alternative Dispute Resolution details will be provided upon request.
13. Errors and Omissions
(1) Proximitum makes every effort to ensure that all prices and descriptions are correct and accurate. In the case of a manifest error or omission, Proximitum will be entitled to rescind the contract, notwithstanding that it has already accepted the Customer's order and/or received payment from the Customer. Proximitum's
liability in that event will be limited to the return of any money the Customer has paid in respect of the order. In the case of a manifest error in relation to price, the Customer will be entitled to purchase the goods by paying the difference between the quoted price and the correct price, as confirmed in writing by Proximitum after the manifest error has been discovered.
(2) A 'manifest error', as the term is used in sub-paragraph (1) above, means, in relation to an incorrect price, a price quoted in error by Proximitum which is more than 10% less than the price that would have been quoted had the mistake not been made.
14. Export Restrictions
(1) Customer acknowledges that some goods are controlled for resale or export by the U.S. Department of Commerce, the EU or EU/EFTA member state bodies and / or other applicable restrictions and that such goods may require authorization prior to resale or export. Customer agrees that it will not export, re-export, or otherwise distribute goods, or any direct products thereof, in violation of any dual use restrictions and export control laws or regulations of the U.S., the EU or any EU/EFTA member state or other applicable jurisdiction.
(2) Please note that (some of) the products supplied by us fall within the scope of the EU regulation 428/2009 and that an export license is required to transfer the goods outside of the EU. In case of export of these products outside of the EU, you will be responsible for obtaining such licences from the relevant authority.
(3) Customer shall indemnify Proximitum for any claims, losses, costs, liability and charges, including reasonable legal fees incurred by Proximitum as a result of Customer’s breach of any export controls or regulations.
(4) It shall be the Customer’s responsibility to comply with all export and other resale restrictions. Upon request the Customer agrees to reaffirm in writing its compliance and its intentions to comply with applicable export and restricted user and uses regulations.
15. Anti-Bribery
(1) The Customer shall:
(a) comply with all applicable laws, regulations, codes and sanctions relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 (Relevant Requirements);
(b) not engage in any activity, practice or conduct which would constitute an offence under sections 1, 2 or 6 of the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK;
(c) have and shall maintain in place throughout the term of this agreement its own policies and procedures, including but
not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirement, the Relevant Policies and clause 1.1(b), and will enforce them where appropriate;
(d) promptly report to the Supplier any request or demand for any undue financial or other advantage of any kind received by the Customer in connection with the performance of this agreement; (e) immediately notify the Supplier if a foreign public official becomes an officer or employee of the Customer or acquires a direct or indirect interest in the Customer (and the Customer warrants that it has no foreign public officials as officers, employees or direct or indirect owners at the date of this agreement)
(2) Breach of this clause 17 shall be deemed a material breach.
(3) For the purpose of this clause 17, the meaning of adequate procedures and foreign public official and whether a person is associated with another person shall be determined in accordance with section 7(2) of the Bribery Act 2010 (and any guidance issued under section 9 of that Act), sections 6(5) and 6(6) of that Act and section 8 of that Act respectively.
16. Confidential Information and Data Protection
(1) Each party shall preserve the confidentiality of all confidential information of the other which it receives, keep such information secure and protected against theft, damage, loss or unauthorised access, and not use such information for any purpose except as contemplated by the Contract. Moreover, each party shall ensure that such obligations are observed by its employees, officers, agents and contractors. These obligations shall survive the variation, renewal or termination of the Contract for a period of three years but shall not apply to information which is already in or subsequently comes into the public domain through no fault of the
recipient.
(2) Each Party shall process personal data in accordance with the Data Protection Legislation (which includes applicable data protection legislation including the General Data Protection Regulation ((EU) 2016/679) (GDPR), the Data Protection Directive (95/46/EC), and any national implementing laws, regulations and secondary legislation) as amended from time to time. Terms used throughout this clause including “data controller”, “data processor”, “data subject”, “personal data” and “processing” are as defined in the Data Protection Legislation.
(3) Personal data processing will be accomplished through electronic and non-electronic means, for the purpose of these terms and conditions. Customer is responsible for obtaining the consent of all Customer related data subjects whose personal data is provided to or otherwise made available to Proximitum pursuant
to these terms and conditions or any order. Customer authorises Proximitum to engage sub-processors to the extent required for the performance of these terms and conditions and/or any order. Proximitum shall in respect of any personal data of the Customer processed under these terms and conditions to maintain such personal data under appropriate, commercially reasonable and sufficient technical and organisational security measures to protect such personal data or information and both Parties warrant to have taken all appropriate registrations under relevant EU Data Protection Legislation. Customer authorises Proximitum to
transfer and (sub)process any personal data outside of the European Economic Area (EEA) in order to perform these terms and conditions and/or the orders, other legal obligations and/or for Proximitum’s other legitimate interests, provided that such transfer is made in accordance with Data Protection Legislation. Transfers made within the Proximitum group of companies will be made under a legal framework compliant with the Data Protection Legislation such as the Privacy Shield or the European Commission approved Model Contract Clauses. Proximitum's privacy policy shall apply to orders placed. A copy of the policy can be found on Proximitum's website. Notwithstanding any other provision of these terms and conditions, Customer agrees that Proximitum shall not be considered a data processor or data controller or in any other way have any responsibilities or liability (and the Customer holds Proximitum harmless) in respect of the processing of personal data pursuant to a Product or Service (including cloud service) provided by a third party supplier of product or services transacted by Proximitum and where Proximitum is not processing such data. Such processing of personal data shall be subject to the arrangements and contract terms entered in to directly between Customer and the third party provider.
17. General
(1) Nothing in these terms and conditions affects your statutory rights as a Consumer.
(2) If any provision in this Agreement is held to be invalid or unenforceable, it shall be deemed severed from the Agreement and this shall not affect the validity or enforceability of the remaining provisions.
(3) Any waiver of a breach of this Agreement must be in writing.
(4) Any variation of this Agreement must be in writing and signed by a duly authorised Proximitum official.
(5) The headings are for convenience only and shall not affect the interpretation of this Agreement.
(6) Any notices given under this Agreement shall be in writing and sent (a) by first class pre-paid post to the last known address of the party; or (b) by fax to their last known fax number; or (c) by e-mail to the last notified e-mail address of the party.
(7) These terms and conditions shall be governed by and construed in accordance with the laws of England & Wales and the parties submit to the non-exclusive jurisdiction of the English courts.
(8) Proximitum may at its discretion record telephone transactions for staff training and quality control purposes.