General Terms and Conditions of Business
- In these General Terms:
Applicable Law: means laws and regulations made by any government or other competent authority in the Territory or elsewhere where the Products may be sold and/or used or where Belkin and/or Customer are established or carry out business activities.
Backorder: means an Order for Products which are not in stock at the time of the Order.
Belkin: means Belkin Ltd (registered in England number 03168562) with its registered office at c/o Bryan Cave Leighton Paisner LLP, Adelaide House, London Bridge, London EC4R 9HA, United Kingdom.
Belkin Price List: means Belkin’s price list of Products as made available to Customer from time to time.
Confidential Information: means all information disclosed or made available to Customer by Belkin including any information that would be regarded as confidential by a reasonable business person relating to:
(a) the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of Belkin or of Belkin's group companies; and
(b) the operations, processes, product information, know-how, designs, trade secrets or software of Belkin or of Belkin's group companies; and
(c) any information or analysis derived from any such information,
but excludes any information that is or becomes generally available to the public (other than as a result of its disclosure in breach of these General Terms), or was lawfully in the possession of Customer before the information was disclosed to it by Belkin as evidenced by written records.
Controller: has the meaning given under Data Protection Law.
Customer: means the person, firm, company, entity or organisation with whom Belkin contracts for the sale of Products and/or supply of Services.
Customer Agreement: means a duly executed legally binding agreement concluded between Belkin and Customer which relates to substantially the same subject matter as these General Terms.
Data Protection Law: means all laws, regulatory requirements, guidance and codes of practice, including Regulation (EU) 2016/679 ("GDPR"), applicable to the processing of Personal Data (as amended and/or replaced from time to time).
Dealer: means a reseller of Products within the Territory which is authorised by Belkin or which meets Belkin’s general guidelines for resellers from time to time.
Documentation: means user manuals, training materials, Product descriptions and Specifications, Product data sheets, technical manuals, license agreements, supporting materials and other information relating to Products and/or services offered by Belkin, whether distributed in analogue or digital format.
End User: means the final purchaser or licensee which has acquired Product for its own business or personal use and not for Resale. An entity which performs stocking, sparing or warehousing activities for third parties or procures Belkin Products for delivery to third parties is not an End User.
End User License Agreement: means the end user license agreement at www.belkin.com/us/end-user-license-agreement/ as may be amended from time to time.
Export Controls: means all Applicable Law, including but not limited to the laws from time to time of the United States of America, relating to the importation, storage, packaging, marketing, distribution, sale, use, export, re-export, and transfer of the Products.
General Terms: means these general terms and conditions of business or such amended standard terms and conditions as are in force at the submission of any Order by Customer which at such date appear on Belkin's web site at https://www.belkin.com/uk/europe/customer.
Hardware: means the tangible product made available to Customer.
IPR Claim: a claim that any Product infringes any applicable copyright existing as at the date of any Order or any applicable patent issued as at such date.
Mark: means any or all of the name, logo, trademarks, and other marks of Belkin or any member of the same group of companies as Belkin.
Non-Genuine Products: means any and all products: (i) to which a Mark or other Belkin trademark or service mark has been affixed without Belkin’s consent; (ii) that do not originate from Belkin or are produced without the approval of Belkin; and/or (iii) are produced with the intent to counterfeit or imitate a genuine Belkin Product.
Order: means an order for Products to be purchased from and/or licensed or provided by Belkin, placed by Customer under these General Terms.
Personal Data: has the meaning given under Data Protection Law.
Product: means, individually or collectively as appropriate, Hardware, licensed Software, Documentation, developed products, supplies, accessories, and other goods related to any of the foregoing.
Purchase Order: means a written or electronic Order in a form and in a manner as may be agreed by Belkin from time to time, in terms which conform to these General Terms.
Software: means the machine readable (object code) version of computer programs developed or marketed by or for Belkin and related documentation made available by Belkin for license by Customer, and any copies or Updates thereof. Software includes firmware and may be loaded onto the Product or otherwise made available by Belkin prior to shipment or may be installed or downloaded, in whole or in part, after shipment of the Product.
Special Order Products: means Products that are classified by Belkin as special order Products or Products which have been configured to Customer's specifications.
Specifications: means any electrical, functional, physical, component performance, system performance, compatibility, design characteristics, features, operational and technical criteria or other technical capabilities of the Product found in the Product data sheet for that Product version as published at www.belkin.com from time to time.
Territory: means such territory as may be specified by Belkin from time to time in relation to any Order.
Updates: means any maintenance releases or other incremental release of the Software, that provides maintenance fixes, modifications, and may provide minor additional Software features or functions of the Software, and that provides the same configuration/feature set as originally set out in the Specifications.
- The headings in these General Terms are for convenience only and shall not affect their interpretation.
- In these General Terms:
- Applicability of these General Terms
- Subject to clause 2.2, all Orders placed by Customer and accepted by Belkin shall be governed by these General Terms to the exclusion of any other terms and conditions including without limitation any terms on or referred to in any Customer purchase order. No variation to these General Terms shall be binding unless agreed by letter signed by an authorised representative of Belkin.
- Notwithstanding any other term of these General Terms, as of the effective date of any Customer Agreement, such Customer Agreement shall supersede these General Terms which shall have no applicability or effect.
- Orders and Specifications
- Customer is solely responsible for ensuring the accuracy of the terms of any purchase order, its selection of Products and the fitness of the Products for any particular purpose.
- Purchase Orders are to be submitted via EDI unless otherwise authorised by Belkin.
- Purchase Orders should indicate:
- specific Products, including Belkin’s product number;
- unit price;
- complete shipping address and instructions, including Customer’s point of contact information;
- requested delivery dates;
- Purchase Order number;
- line item number; and
- any other special instructions.
- Belkin is not required to accept any Purchase Order, and any contingencies contained on such Purchase Order are not binding upon Belkin. The provision or display of Product pricing and other information by Belkin to Customer does not amount to an offer by Belkin to sell such Product
- Belkin will notify Customer of any change in the specification of any Product which is the subject of an Order. In the event that Belkin and Customer agree, acting reasonably, that such change is material to the Order, Belkin and the Customer may agree to cancel, amend or reschedule such Order.
- Except as specified Belkin is under no obligation to accept the cancellation of any Order once it has been accepted by Belkin.
- Notwithstanding the acceptance by Belkin of any Order, if there has been a material pricing error by Belkin, Belkin shall be entitled within 30 days of such acceptance to either invoice the Customer for the correct price of the Product in question or, if Customer so chooses, to collect the Product at Belkin's expense and credit the Customer for any charges previously invoiced by Belkin.
- Orders for direct shipment to Customer's customers or Special Order Products may require the Customer’s acceptance of additional terms and will be subject to additional fees to be advised by Belkin.
- Belkin may set minimum order levels which will be notified to Customer.
- Prices for Products will be stated on the Belkin Price List, provided that if Customer places a Backorder of a Product, Belkin will inform Customer of the price for such Product at the time the Backorder is accepted by Belkin.
- Unless otherwise advised, prices quoted by Belkin include the cost of transport from Belkin's warehouse to the Customer's shipping destination.
- All prices and charges are exclusive of any applicable Value Added Tax or the like, which the Customer will be additionally liable to pay to Belkin. Unless otherwise stated prices exclude any tariffs, copyright levies, waste and environmental fees and similar charges that Belkin may be obliged to charge or collect upon resale.
- Unless Belkin has previously agreed in writing that Products will be supplied on credit, payment for the Products shall be made in full by the Customer with the Customer's Order or on delivery or collection of the Products as advised by Belkin.
- Where Belkin has agreed to supply Products on credit Customer shall pay for such Products within 30 days of the date of Belkin's invoice.
- Customer shall not deduct or set off any other amount against the invoice.
- Belkin shall be entitled at its absolute discretion to withdraw or alter any credit limit or terms without notice.
- The time of payment shall be of the essence. If the Customer fails to make a payment on the
then without prejudice to any other right or remedy available to it Belkin will be entitled
- cancel the Order or suspend any further deliveries to Customer;
- allocate any payment made by Customer to such of the Products as Belkin may think fit; and/or
- charge the Customer interest (both before and after judgment) on the amount unpaid at the rate of 6% per annum above HSBC Bank plc base rate from time to time until payment in full is made such interest being calculated on a daily basis.
- Upon reasonable request from Belkin from time to time, Customer shall provide copies of Customer’s quarterly and annual financial records and any updates thereto in order for Belkin to assess Customer’s creditworthiness.
- If Belkin issues a credit note which Customer does not utilise within 12 months from the date of its issue, Belkin shall have the right to cancel the credit note and Customer shall not be entitled to a replacement or any payment in respect of the same.
- Belkin reserves the right to issue and send all invoices to the Customer in an electronic format.
- Shipping dates will be scheduled by Belkin upon acceptance of a Purchase Order.
- Customer may defer shipment for up to thirty days from the original shipping date scheduled by Belkin, provided written or electronic notice (issued in either case by an authorized representative of Customer) is received by Belkin at least thirty days prior to such shipping date.
- Delivery will be on the basis specified by Belkin. Belkin will select the carrier unless delivery is EXW. Customer shall be responsible for all freight, handling and insurance charges subsequent to delivery. Belkin shall not be liable for damage or penalty for delay in delivery or for failure to give notice of any delay. Belkin shall not have any liability in connection with shipment, nor shall the carrier be deemed to be an agent of Belkin.
- Customer shall upon receipt of the Products sign the delivery note (proof of delivery) Customer’s sign-off on Belkin’s delivery shall be at carton level. Belkin shall be entitled to assume that any person who signs an acceptance note in respect of the Products on behalf of Customer has the authority to do so.
- Any dates quoted or scheduled for the delivery of Products are approximate only and Belkin shall not be liable for any delay in delivery of the Products howsoever caused.
- If Belkin has agreed to ship Products direct to Customer's customer any such shipment shall be deemed to be delivery to Customer and any refusal by Customer's customer to accept delivery shall be deemed to be a refusal by the Customer.
- Customer shall obtain the necessary authorisations from Belkin and follow the returns procedures in relation to defective or damaged Products as advised by Belkin from time to time.
- Risk and Title
- Risk of damage to or loss of Products shall pass to the Customer at the time of delivery or if the Customer fails to take due delivery of Products, at the time when Belkin has made the Products available for delivery.
- Title to the Products will pass to the Customer when Belkin has received payment in full in cleared funds for the Products and all other sums which are or become due to Belkin from Customer on any account.
- Until such time as title to the Products passes to the Customer the Customer shall:
- hold the Products as Belkin's fiduciary agent and bailee;
- keep the Products separate to those of the Customer and third parties; and
- keep the Products properly stored protected and insured, and able to be identified as Belkin's property.
- Until such time as the title in the Products passes to the Customer (and provided the Products have not been resold) Belkin shall be entitled at any time to require the Customer to deliver up the Products to Belkin and if the Customer fails to do so forthwith to enter upon any premises of Customer or any third party where the Products are stored and repossess the Products.
- Customer's right to possession of the Products shall terminate immediately if:
- Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of Customer or for the granting of an administration order in respect of Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of Customer; or
- Customer suffers or allows any execution to be levied on its property or obtained against it, or breaches any contract between Belkin and Customer or is unable to pay its debts within the meaning of Section 123 of the UK Insolvency Act 1986 or equivalent legislation in any relevant jurisdiction, or Customer ceases to trade; or
- Customer encumbers or seeks to encumber any of the Products.
- Customer is entitled to resell the Products in the ordinary course of business. Customer is not able or entitled to offer the Products as collateral or otherwise grant a charge in respect of the Products until title has passed to the Customer in accordance with these General Terms.
- Warranties and Liability
- Belkin and Customer each represent and warrant to the other that it has not entered into any agreements or commitments which are inconsistent with or in conflict with the rights granted to the other Party.
- Belkin agrees that Customer will be entitled to pass through to its customers all written warranties provided by Belkin with a Product. Customer will ensure that Belkin’s standard limited warranty and other terms included with each Product are passed on to its customers. This warranty will commence upon the date the End User purchases the applicable Product.
- Except for the written warranty provided by Belkin with its Products, Customer will not make any representation or warranty commitment, whether written or oral, relating to that Product on Belkin’s behalf.
- Belkin makes no other warranties with respect to the Products, and, to the extent permitted by Applicable Law, disclaims all other warranties and conditions, whether express or implied, including those of merchantability, satisfactory quality, non-infringement, and fitness for a particular purpose (even if that purpose is known to Belkin), or arising from a course of dealing, usage or trade practice.
- Belkin 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 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 incurred or suffered by Customer howsoever caused or arising.
- Nothing in these General Terms shall in any way exclude or limit any liability Belkin may have for death or personal injury caused by its negligence.
- Software Licence
- Subject to these General Terms, Belkin grants Customer a non-exclusive, non-transferable licence to distribute Software, in object code form only, as an integrated component of the Product solely to End Users or to Dealers.
- Except as permitted under any applicable open source software licence terms, Customer will not copy or duplicate any Software without the prior written consent of Belkin.
- If Customer becomes aware of any breach of Belkin’s software licence terms it will so notify Belkin promptly and further agrees that it will diligently pursue or, at Belkin’s request, assist Belkin to diligently pursue, an action against any third parties in breach of such terms. For the avoidance of doubt, any out of pocket costs in relation to the above shall be borne by Belkin.
- Belkin and/or its suppliers retain all title to, and, except as expressly licensed herein, all rights in the Software, all copies thereof and all related Documentation and materials. Any invoices of Belkin purporting to sell or transfer such items do not convey title to, or patent rights, copyrights or any other proprietary interest in such items to Customer.
- Customer acknowledges that it holds no right, title or interest in the Marks.
- Customer is permitted to use such Marks as are designated by Belkin from time to time in writing for all proper purposes in the sale of Products and the performance of Customer‘s obligations under these General Terms. Customer’s use of any such Marks will be in accordance with Belkin’s policies in effect from time to time, including, but not limited to, trademark usage and advertising policies.
- Customer will not attach any other trademarks, trade names, logos or labels to any Product other than an aesthetically proper label, identifying Customer, its location and its relationship to Belkin. Distributor further agrees not to affix any Marks to any products other than Belkin Products.
- Customer agrees that upon notice from Belkin it will immediately terminate its use of a particular Mark.
- Customer agrees not to handle Non-Genuine Products and it will promptly notify Belkin of any Non-Genuine Products of which it becomes aware.
- Patent and Copyright Indemnity
- Belkin will have the defend any claim, suit or proceeding brought against Customer so far as
on a claim that any Product supplied under these General Terms infringes a copyright or an
patent, issued by a member state of the EEA, provided that:
- Customer notifies Belkin promptly in writing of any such claim; and
- Customer gives Belkin full authority, information and assistance for the defence and settlement of such claim.
- Belkin has no liability for, and Customer will indemnify Belkin against, any claim based
- the combination, operation, or use of any Product supplied hereunder with, equipment, devices, or software not supplied by Belkin;
- services offered or used through operation of the Products by Customer or any Dealer or End User to which Distributor transfers Products or the revenue received by Distributor or a Dealer or End User;
- alteration or modification of any Product supplied hereunder; or
- Belkin’s compliance with Customer’s designs, specifications, or instructions.
- Belkin will not be liable for any claim based on Customer’s use of the Product as shipped after Belkin has informed Customer of modifications or changes in the Product required to avoid such claims and offered to implement those modifications or changes, if such claim would have been avoided by implementation of Belkin’s suggestions.
- The provisions of this clause 12 state the entire obligation of Belkin and its suppliers, and the exclusive remedy of Customer, with respect to infringement of proprietary rights. The provisions are given to the Customer solely for its benefit and in lieu of, and Belkin disclaims, all warranties of non-infringement with respect to Products.
- Belkin will have the defend any claim, suit or proceeding brought against Customer so far as it is based on a claim that any Product supplied under these General Terms infringes a copyright or an existing patent, issued by a member state of the EEA, provided that:
- Export Controls
- Customer will comply with all Export Controls and will obtain all permits, licenses consents, approvals, registrations and authorisations (collectively "authorisations") required under Export Controls. Belkin and Customer each agree to provide the other information, support documents, and assistance as may reasonably be required by the other in connection with securing authorisations.
- Customer will keep Belkin advised with respect to the status of all such authorisations, and inform Belkin upon becoming aware that any authorisations are required to be obtained by Belkin for the purposes of fulfilling its obligations under these General Terms and use its best endeavours to assist Belkin in obtaining any such authorisations.
- Upon reasonable request by Customer, Belkin agrees to make available to Customer the Export Control Classification Number (ECCN) for each of the Products supplied to Customer under these General Terms.
- Customer agrees to maintain a record of sales and re-exports of Products and technical data and to forward any required records to Belkin or, at Belkin’s request, any governmental authority. Customer also agrees to permit periodic audits by Belkin or the U.S. Government as required to ensure export compliance.
- Belkin shall not be liable to the Customer or be deemed to be in breach of these General Terms by reason of any delay in performing or any failure to perform any of Belkin's obligation in relation to the Products if the delay or failure was due to any cause beyond Belkin's reasonable control.
- Customer shall not use any Confidential Information except for the specific purpose of carrying out its obligations under these General Terms, and shall not disclose any Confidential Information to any third party other than as is required by Applicable Law, provided that in such event Customer shall first notify Belkin for such requirement if it is lawful for it to do so.
- Belkin and Customer agree that each of them acts as Controller in respect of any Personal Data processed by either of them in connection with these General Terms. Each will observe all requirements of Data Protection Law, including with respect to transfers of Personal Data outside the European Economic Area, and on request, will provide the other at its own expense with reasonable assistance, information and cooperation to ensure compliance with the other party's obligations under Applicable Law.
- Customer will comply with all Applicable Law in exercising its rights and carrying out its obligations under these General Terms, including but not limited to all applicable European, national and regional laws and regulations relating to take back and collection obligations for waste electrical and electronic equipment.
- Any and all of Belkin’s rights and obligations under these General Terms may be assigned by Belkin at any time to any company within the same group of companies as Belkin at the time of such assignment.
- Any notice required or permitted to be given by either party to the other under these General Terms 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.
- No waiver by Belkin of any breach of these General Terms shall be considered as a waiver of any subsequent breach of the same or any other provision.
- If any provision of these General Terms is held by any authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these General Terms and the remainder of the provisions in question shall not be affected thereby.
- These General Terms and any agreement formed under them shall be governed by the laws of England and Customer submits to the exclusive jurisdiction of the English Courts.