Terms And Conditions Of Use
CONDITIONS OF SALE
1. INTERPRETATION
1.1 In these Conditions:
‘BUYER’ means the person who accepts a quotation of the Seller for the
sale of the Goods or whose order for the Goods is accepted by the Seller
‘GOODS’ means the Goods (including any instalment of the goods or parts
for them) which the Seller is to supply in accordance with these
Conditions
‘SELLER’ means The ESD Control Centre Limited (registered in England under number 2526954)
‘CONDITIONS’ means the standard terms and conditions of sale set out in this
document and (unless the context otherwise requires) includes any
special terms and conditions agreed in writing between the Buyer and the
Seller
‘CONTRACT’ means the contract for the purchase and sale of the Goods
‘WRITING’ includes telex, cable, facsimile transmission and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute
shall be construed as a reference to that provision as amended,
re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. BASIS OF THE SALE
2.1 The Seller shall sell and the Buyer shall purchase the Goods in
accordance with any written quotation of the Seller which is accepted by
the Buyer, or any written order of the Buyer which is accepted by the
Seller, subject in either case to these Conditions, which shall govern
the Contract to the exclusion of any other terms and conditions subject
to which any such quotation is accepted or purported to be accepted, or
any such order is made or purported to be made, by the Buyer.
2.2 No such variation to these Conditions shall be binding unless agreed
in Writing between the authorised representatives of the Buyer and the
Seller.
2.3 The Seller’s employees or agents are not authorised to make any
representations concerning the Goods unless confirmed by the Seller in
Writing. In entering into the Contract the Buyer acknowledges that it
does not rely on any such representations which are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or
agents to the Buyer or its employees or agents as to the storage,
application or use of the Goods which is not confirmed in Writing by the
Seller is followed or acted upon entirely at the Buyer’s own risk, and
accordingly the Seller shall not be liable for any such advice or
recommendation which is not so confirmed.
2.5 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 the Seller shall be subject to
correction without any liability on the part of the Seller.
3. ORDERS AND SPECIFICATIONS
3.1 No order submitted by the Buyer shall be deemed to be accepted by
the Seller unless and until confirmed in Writing by the Seller’s
authorised representative.
3.2 The quantity, quality and description of and any specification for
the Goods shall be those set out in the Seller’s quotation (if accepted
by the Buyer) or the Buyer’s order (if accepted by the Seller).
3.3 If the Goods are to be manufactured or any process is to be applied
to the Goods by the Seller in accordance with a specification submitted
by the Buyer, the Buyer shall indemnify the Seller against all loss,
damages, costs and expenses awarded against or incurred by the Seller in
connection with or paid or agreed to be paid by the Seller in
settlement of any claim for infringement of any patent, copyright,
design, trademark or other industrial or intellectual property rights of
any other person which results from the Seller’s use of the Buyers
specification.
3.4 The Seller reserves the right to make any changes in the
specification of the Goods which are required to conform with any
applicable statutory or EC requirements or, where the Goods are to be
supplied to the Seller’s specification, which do not materially affect
their quality or performance.
3.5 No order which has been accepted by the Seller may be cancelled by
the Buyer except with the agreement in Writing of the Seller and on the
terms that the Buyer shall indemnify the Seller in full against all loss
(including loss of profit), costs (including the cost of all labour and
materials used), damages, charges and expenses incurred by the Seller
as a result of cancellation.
4. PRICE OF THE GOODS
4.1 The price of the Goods shall be the Seller’s quoted price or, where
no price has been quoted (or quoted price is no longer valid), the price
listed in the Seller’s published price list current at the date of
acceptance of the order. Where the Goods are supplied for the export
from the United Kingdom, the Seller’s published export price list shall
apply. All prices quoted are valid for 30 days only or until earlier
acceptance by the Buyer, after which time they may be altered by the
Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving notice to the Buyer at any
time before delivery, to increase the price of the Goods to reflect any
increase in the cost to the Seller which is due to any factor beyond the
control of the Seller (such as, without limitation, any foreign
exchange fluctuation, currency regulation, alteration of duties,
significant increase in the costs of labour, materials or other costs of
manufacture), any change in delivery dates, quantities or
specifications for the Goods which is requested by the Buyer, or any
delay caused by any instructions of the Buyer or failure of the Buyer to
give the Seller adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in
any price list of the Seller, and unless otherwise agreed in Writing
between the Buyer and the Seller, all prices are given by the Seller on
an ex works basis, and where the Seller agrees to deliver the Goods
otherwise than at the Seller’s premises, the Buyer shall be liable to
pay the Seller’s charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable value added tax or other
tax on sales, which the Buyer shall be additionally liable to pay to the
Seller.
5. TERMS OF PAYMENT
5.1 Subject to any special terms agreed in Writing between the Buyer and
the Seller, the Seller shall be entitled to invoice the Buyer for the
price of the Goods on or at any time after despatch of the Goods, unless
the Goods are to be collected by the Buyer or the Buyer wrongfully
fails to take delivery of the Goods, in which event the Seller shall be
entitled to invoice the Buyer for the price at any time after the Seller
has notified the Buyer that the Goods are ready for collection or (as
the case may be) the Seller has tendered delivery of the Goods.
5.2 The Buyer shall pay the price of the Goods (less any discount to
which the Buyer is entitled, but without any other deduction) within 30
days of the date of the Seller’s invoice, and the Seller shall be
entitled to recover the price, notwithstanding that delivery may not
have taken place and the property in the Goods has not passed to the
Buyer. The time of payment of the price shall be of the essence of the
Contract. Receipts for payment will be issued only upon request.
5.3 If the Buyer fails to make any payment on the due date then, without
prejudice to any other right or remedy available to the Seller, the
Seller shall be entitled to:
5.3.1 cancel the Contract or suspend further deliveries to the Buyer;
5.3.2 appropriate any payment made by the Buyer to such of the Goods as
the Seller may think fit (notwithstanding any purported appropriation by
the Buyer); and
5.3.3 charge the Buyer interest (both before and after any judgement) on
the amount unpaid, at the rate of 2 per cent per annum above HSBC Bank
base rate from time to time, until payment in full is made (a part of a
month being treated as a full month for the purpose of calculating
interest).
6. DELIVERY
6.1 Delivery of the Goods shall be made by the Buyer collecting the
Goods at the Seller’s premises at any time after the Seller has notified
the Buyer that the Goods are ready for collection or, if some other
place for the delivery is agreed by the Seller, by the Seller delivering
the Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only and
the Seller shall not be liable for any delay in delivery of the Goods
howsoever caused. Time for delivery shall not be of the essence of the
Contract unless previously agreed by the Seller in writing. The Goods
may be delivered by the Seller in advance of the quoted delivery date
upon giving reasonable notice to the Buyer.
6.3 Where the Goods are to be delivered in instalments, each delivery
shall constitute a separate contract and failure by the Seller 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.
6.4 If the Seller fails to deliver the Goods (or any instalment) for any
reason other than any cause beyond the Seller’s reasonable control or
the Buyers fault, and the Seller is accordingly liable to the Buyer, the
Seller’s liability shall be limited to the excess (if any) of the cost
to the Buyer (in the cheapest available market) of similar goods to
replace those not delivered over the price of the Goods.
6.5 If the Buyer fails to take delivery of the Goods or fails to give
the Seller adequate delivery instructions at the time stated for
delivery (otherwise than by reason of any cause beyond the Buyer’s
reasonable control or by reason of the Seller’s fault) then, without
prejudice to any other right or remedy available to the Seller, the
Seller may:
6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs including insurance) of storage; or
6.5.2 sell the Goods at the best price readily obtainable and (after
deducting all reasonable storage and selling expenses) account to the
Buyer for the excess over the price under the Contract or charge the
Buyer for any shortfall below the price under the Contract.
7. RISK AND PROPERTY
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 in the case of Goods to be delivered at the Seller’s premises, at
the time when the Seller notifies the Buyer that the Goods are available
for collection; or
7.1.2 in the case of Goods to be delivered otherwise than at the
Seller’s premises, at the time of delivery or, if the Buyer wrongfully
fails to take delivery of the Goods, the time when the Seller has
tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or
any other provision of these Conditions, property in the Goods shall not
pass to the Buyer until the Seller has received in cash or cleared
funds payment in full of the price of the Goods and all other goods
agreed to be sold by the Seller to the Buyer for which payment is then
due.
7.3 Until such time as the property in the Goods passes to the Buyer,
the Buyer shall hold the Goods as the Seller’s Fiduciary agent and
bailee, and shall keep the Goods separate from those of the Buyer and
third parties and properly stored, protected and insured and identified
as the Seller’s property, but shall be entitled to resell or use the
Goods in the ordinary course of its business.
7.4 Until such time as property in the Goods passes to the Buyer (and
provided the Goods are still in existence and have not been resold), the
Seller shall be entitled at any time to require the Buyer to deliver up
the Goods to the Seller and, if the Buyer fails to do so forthwith, to
enter upon any premises of the Buyer or any third party where the Goods
are stored and repossess the Goods.
7.5 The Buyer shall not be entitled to pledge or in any way charge by
way of a security for any indebtedness any of the Goods which remain the
property of the Seller, but if the Buyer does so all monies owing by
the Buyer to the Seller shall (without prejudice to any other right or
remedy of the Seller) forthwith become due and payable.
8. WARRANTIES AND LIABILITY
8.1 Subject to the conditions set out below the Seller warrants that the
Goods will correspond with their specification at the time of delivery
and will be free from defects in material and workmanship for a period
of 1 month from delivery.
8.2 The above warranty is given by the Seller subject to the following conditions:
8.2.1 the Seller shall be under no liability in respect of any defect in
the Goods arising from any drawing, design or specification supplied by
the Buyer;
8.2.2 the Seller 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 Seller’s instructions (whether
oral or in writing), misuse or alteration or repair of the Goods
without the Seller’s approval;
8.2.3 the Seller shall be under no liability under the above warranty
(or any other warranty, condition or guarantee) if the total price for
the Goods has not been paid by the due date for payment;
8.2.4 the above warranty does not extend to parts, materials or
equipment not manufactured by the Seller, in respect of which the Buyer
shall only be entitled to the benefit of any such warranty or guarantee
as is given by the manufacturer to the Seller.
8.3 Subject as expressly provided in these Conditions, and except where
the Goods are sold to a person dealing as a consumer (within the meaning
of the Unfair Contract Terms Act 1977), all warranties, conditions or
other terms implied by statute or common law are excluded to the fullest
extent permitted by law.
8.4 Where the Goods are sold under a consumer transaction (as defined by
the Consumer Transactions (Restrictions on Statements) Order 1976) the
statutory rights of the Buyer are not affected by these Conditions.
8.5 Any claim by the Buyer which is based on any defect in the quality
or condition of the Goods or their failure to correspond with
specification shall (whether or not delivery is refused by the Buyer) be
notified to the Seller in Writing within 7 days from the date of
delivery or (where the defect or failure was not apparent on reasonable
inspection) within a reasonable time after discovery of the defect or
failure. If delivery is not refused, and the Buyer does not notify the
Seller accordingly, the Buyer shall not be entitled to reject the Goods
and the Seller shall have no liability for such defect or failure, and
the Buyer shall be bound to pay the price as if the Goods had been
delivered in accordance with the Contract.
8.6 Where any valid claim in respect of any of the Goods which is based
on any defect in the quality or condition of the Goods or their failure
to meet specification is notified to the Seller in accordance with these
Conditions, the Seller shall be entitled to replace the Goods (or the
part in question) free of charge or, at the Seller’s sole discretion,
refund to the Buyer the price of the Goods (or a proportionate part of
the price), but the Seller shall have no further liability to the Buyer.
8.7 Except in respect of death or personal injury caused by the Seller’s
negligence, the Seller shall not be liable to the buyer by reason of
any representation (unless fraudulent), or any implied warranty,
condition or other term, or any duty at common law, or under the express
terms of the Contract, for any indirect, special or consequential loss
or damage (whether for loss of profit or otherwise), costs, expenses or
other claims for compensation whatsoever (whether caused by the
negligence of the Seller, its employees or agents otherwise) which arise
out of or in connection with the supply of the Goods or their use or
resale by the Buyer, and the entire liability of the Seller under or in
connection with the Contract shall not exceed the price of the Goods,
except as expressly provided in these Conditions.
8.8 The Seller shall not be liable to the Buyer or be deemed to be in
breach of the Contract by reason of any delay in performing, or any
failure to perform, any of the Seller’s obligations in relation to the
Goods, if the delay or failure was due to any cause beyond the Seller’s
reasonable control. Without prejudice to the generality of the
foregoing, the following shall be regarded as causes beyond the sellers
reasonable control:
8.8.1 Act of God, explosion, flood, tempest, fire or accident;
8.8.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.8.3 acts, restrictions, regulations, by-laws, prohibitions or measures
of any kind on the part of any governmental, parliamentary or local
authority;
8.8.4 import or export regulations or embargoes;
8.8.5 strikes, lock-outs or other industrial actions or trade disputes
(whether involving employees of the Seller or of a third party);
8.8.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.8.7 power failure or breakdown in machinery.
9. INDEMNITY
9.1 If any claim made against the Buyer that the Goods infringe or that
their use or resale infringes any patent, copyright, design, trademark
or other industrial or intellectual property rights of any other person,
then unless the claim arises from the use of any drawing, design or
specification supplied by the Buyer, the Seller shall indemnify the
Buyer against all loss, damages, costs and expenses awarded against or
incurred by the Buyer in connection with the claim or paid by the Buyer
in settlement of the claim, provided that:
9.1.1 the Seller is given full control of any proceedings or negotiations in connection with any such claim;
9.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1.3 except pursuant to a final award the Buyer shall not pay or accept
any such claim, or compromise any such proceedings without the consent
of the Seller (which shall not be unreasonably withheld)
9.1.4 the Buyer shall do nothing which would or might vitiate any policy
of insurance or insurance cover which the Buyer may have in relation to
such infringement, and this indemnity shall not apply to the extent
that the Buyer recovers any sums under such policy or cover (which the
Buyer shall use its best endeavours to do):
9.1.5 the Seller shall be entitled to the benefit of, and the Buyer
shall accordingly account to the Seller for, all damages and costs (if
any) awarded in favour of the Buyer which are payable by, or agreed with
the consent of the Buyer (not to be unreasonably withheld) to be paid
by any other party in respect of any such claim; and
9.1.6 without prejudice to any duty of the Buyer at common law, the
Seller shall be entitled to require the Buyer to take such steps as the
Seller may reasonable require to mitigate or reduce any such loss,
damages, costs or expenses for which the Seller is liable to indemnify
the Buyer under this clause.
10. INSOLVENCY OF BUYER
10.1 This clause applies if:
10.1.1 the Buyer makes any voluntary arrangement with its creditors or
(being an individual or firm) becomes bankrupt or (being a company)
becomes subject to an administration order or goes into liquidation
(otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2 An emcumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4 the Seller reasonably apprehends that any of the events mentioned
above is about to occur in relation to the Buyer and notifies the Buyer
accordingly.
10.2 If this clause applies then, without prejudice to any other right
or remedy available to the Seller, the Seller shall be entitled to
cancel the Contract or suspend any further deliveries under the Contract
without liability to the Buyer, and 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.
11. GENERAL
11.1 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
other such address as may at the relevant time have been notified
pursuant to this provision to the party giving the notice.
11.2 No waiver by the Seller of any breach of the Contract by the Buyer
shall be considered as a waiver of any subsequent breach of the same or
any other provision.
11.3 If any provision of these Conditions is held by any competent
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 provision is question shall not be affected.
11.4 The Contract shall be governed by the laws of England, and the
Buyer agrees to submit to the non-exclusive jurisdiction of the English
courts.