Standard Terms and Conditions for the Sale of Zinergy Goods
Valid from 1st April 2024
Valid from 28th March 2025
1. Application of Terms and Conditions
The Seller shall sell and the Buyer shall purchase the Goods in accordance with any quotation or offer of the Seller which is accepted by the Buyer and these Terms and Conditions 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 by the Seller, or any such order is made or purported to be made, by the Buyer.
2. Interpretation
2.1
In these Terms and Conditions, unless the context otherwise requires, the
following expressions have the following meanings:
Acceptance Notice
means the written order acceptance notice provided by the Seller confirming the identity and number of Goods to be sold to the Buyer at the stated unit price and overall Contract Price, as well as the Delivery Date and address to which the Goods will be delivered
Business Day
means any day other than a Saturday, Sunday or national holiday of England and Wales
Buyer
means the person who accepts a quotation or offer of the Seller for the sale of the Goods
Contract
means the contract for the purchase and sale of the Goods which shall incorporate, and be subject to, these Terms and Conditions
Contract Price
means the price stated in the Contract payable for the Goods
Delivery Date
means the date on which the Goods are to be delivered as stipulated in the Seller’s Acceptance Notice
Goods
means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with the Contract;
Month
means a calendar month; and
Seller
means Zinergy UK Ltd., a company registered in England under Company number 09561538 of the Future Business Centre, Kings Hedges Road, Cambridge CB4 2HY, UK and includes all employees and agents of Zinergy UK Ltd.
Warranty Terms
means the Warranty Terms published on the www.zinergy-power.com website from time to time.
2.2
Unless the context otherwise requires, each reference in these Terms and Conditions to:
2.2.1
“writing”, and any cognate expression, includes a reference to any communication effected by persistent electronic or facsimile transmission or similar means;
2.2.2
a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time
2.2.3
“these Terms and Conditions” is a reference to these Terms and Conditions and any Schedules as amended or supplemented at the time the Acceptance Notice is communicated to the Buyer
2.2.4
a Schedule is a schedule to these Terms and Conditions; and
2.2.5
a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule.
2.2.6
2.2.6 a “Party” or the “Parties” refer to the parties to these Terms and Conditions.
2.3
The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
2.4
Words imparting the singular number shall include the plural and vice versa.
2.5
References to any gender shall include the other gender.
3. Basis of Sale
3.1
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, and waives any claim for breach of, any such representations which are not confirmed in the Acceptance Notice.
3.2
No variation to these Terms and Conditions, or to the Contract, shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller and evidenced in the Acceptance Notice.
3.3
Sales literature, price lists and other documents issued by the Seller in relation to the Goods are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. No contract for the sale of the Goods shall be binding on the Seller unless the Seller has issued the earlier of:
3.3.1
an Acceptance Notice;
3.3.2
delivery of the Goods; or
3.3.3
the Seller’s invoice.
3.4
Any typographical, clerical or other accidental errors or omissions 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.
4. Orders and Specifications
4.1
No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing in an Acceptance Notice.
4.2
The specification for the Goods shall be that set out in the Seller’s sales documentation unless varied expressly (at the Buyer’s request) in the Acceptance Notice.
4.3
Illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by the Seller are intended as a guide only and shall not be binding on the Seller.
4.4
The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Buyer’s specification, which do not materially affect their quality or performance.
4.5
No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller 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 such cancellation.
5. Price
5.1
The Contract Price of the Goods shall be the price stated in the Acceptance Notice.
5.2
Where the Seller has quoted a price for the Goods other than in accordance with the Seller’s published price list the price quoted shall be valid for 30 (thirty) days only or such lesser time as the Seller may specify.
5.3
The Seller reserves the right, by giving written 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 (including, 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 are 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.
5.4
The Seller may allow the Buyer quantity discounts subject to and in accordance with the conditions set out in the Seller’s published price list for the Goods current at the date of acceptance of the Buyer’s order or in the Acceptance Notice.
5.5
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 for the Goods are exclusive of the Seller’s charges for packaging and transport.
5.6
The Contract Price is exclusive of any applicable value added tax, excise, sales taxes, import duties or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods, which the Buyer shall be additionally liable to pay.
6. Payment
6.1
Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall invoice the Buyer for the Contract Price of the Goods on or at any time after delivery of the Goods to the address listed in the Acceptance Notice.
6.2
The Buyer shall pay the Contract Price of the Goods within 30 (thirty) days of the date of the Seller’s invoice or otherwise in accordance with such credit terms as may have been agreed in writing between the Buyer and the Seller in respect of the Contract. Payment shall be made on the due date notwithstanding that the property in the Goods has not passed to the Buyer. The time for the payment of the Contract Price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
6.3
All payments shall be made to the Seller as indicated on the Acceptance Notice or invoice issued by the Seller.
6.4
The Seller is not obliged to accept orders from any customer or buyer who has not supplied the Seller with references satisfactory to the Seller. If at any time the Seller is not satisfied as to the creditworthiness of the Buyer it may give notice in writing to the Buyer that no further credit will be allowed to the Buyer in which event no further goods will be delivered to the Buyer other than against cash payment and notwithstanding sub-Clause 6.2 of these Terms and Conditions, all amounts owing by the Buyer to the Seller shall be immediately payable in cash.
7. Delivery
7.1
Delivery of the Goods shall be made by the Seller delivering the Goods to the place specified in the Seller’s Acceptance Notice and/or the Contract as the location to which the Goods are to be delivered by the Seller.
7.2
The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by the Seller and stated in the Acceptance Notice. The Goods may be delivered by the Seller in advance of the Delivery Date upon giving reasonable notice to the Buyer.
7.3
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 Terms and 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.
7.4
If the Buyer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, the Seller shall be entitled upon giving written notice to the Buyer to store or arrange for the storage of the Goods and then notwithstanding the provisions of sub-Clause 10.1, risk in the Goods shall pass to the Buyer, delivery shall be deemed to have taken place and the Buyer shall pay to the Seller all costs and expenses including storage and insurance charges arising from such failure.
8. Non-Delivery
8.1
If the Seller fails to deliver the Goods or any part thereof on the Delivery Date other than for reasons outside the Seller’s reasonable control or the Buyer’s or its carrier’s fault:
8.1.1
if the Seller delivers the Goods within 15 Business Days thereafter the Seller shall have no liability in respect of such late delivery; or
8.1.2
if the Buyer gives written notice to the Seller within 15 Business Days after the Delivery Date and the Seller fails to deliver the Goods within 20 Business Days after receiving such notice the Buyer may cancel the order and 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 those not delivered over the price of the Goods not delivered.
9. Inspection/Shortage
9.1
The Buyer is under a duty whenever possible to inspect the Goods on delivery or on collection as the case may be.
9.2
Where the Goods cannot be examined the carrier’s note or such other note as appropriate shall be marked “not examined”.
9.3
The Seller shall be under no liability for any damage or shortages that would be apparent on reasonable careful inspection if the provisions of this Clause 9 are not complied with and, in any event, will be under no liability if a written complaint is not delivered to the Seller within 20 Business Days of delivery detailing the alleged damage or shortage.
9.4
In all cases where complaints of defects or shortages are made,the Seller shall be under no liability in respect thereof unless an opportunity to inspect the Goods is supplied to the Seller before any use is made thereof or any alteration or modification is made thereto by the Buyer.
9.5
Subject to sub-Clauses 9.3 and 9.4, the Seller shall make good any shortage in the Goods and where appropriate replace any Goods damaged in transit as soon as it is reasonable to do so, but otherwise shall be under no liability whatsoever arising from such shortage or damage.
10. Risk and Retention of Title
10.1
Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery to the address stated in the Acceptance Notice or, if the Buyer wrongfully fails to take delivery of the Goods at that location, the time when the Seller has tendered delivery of the Goods.
10.2
Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, legal and beneficial title of 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.
10.3
Until payment has been made to the Seller in accordance with these Terms and Conditions and the Contract and title in the Goods has passed to the Buyer, the Buyer shall be in possession of the Goods as bailee for the Seller and the Buyer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by the Seller and shall insure the Goods against all reasonable risks.
10.4
The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all money owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
10.5
The Seller reserves the right to repossess any Goods in which the Seller retains title without notice. The Buyer irrevocably authorises the Seller to enter the Buyer’s premises during normal business hours for the purpose of repossessing the Goods in which the Seller retains title or inspecting the Goods to ensure compliance with the storage and identification requirements of sub-Clause 10.3.
10.6
Payment by Buyer of any Non-Recurring Expenses, for items such as (but not limited to) tooling or screens, will not vest any right or title in Buyer, and Seller will have unrestricted right and authority to produce, use and/or sell identical Goods to others.
10.7
The Buyer’s right to possession of the Goods in which the Seller maintains legal and beneficial title shall terminate if:
10.7.1
the Buyer commits or permits any material breach of his obligations under these Terms and Conditions;
10.7.2
the Buyer enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986, the Insolvent Partnerships Order 1994 (as amended), or any other scheme or arrangement is made with his creditors;
10.7.3
the Buyer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors;
10.7.4
the Buyer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Buyer, notice of intention to appoint an administrator is given by the Buyer or any of its directors or by a qualifying floating charge-holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer.
11. Assignment
11.1
The Seller may assign the Contract or any part of it to any person, firm or company without the prior consent of the Buyer.
11.2
The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
12. Defective Goods
12.1
If on delivery any of the Goods are defective in any material respect and either the Buyer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery as “condition and contents unknown” the Buyer gives written notice of such defect to the Seller within 20 Business Days of such delivery, the Seller shall at its option:
12.1.1
replace the defective Goods within 30 Business Days of receiving the Buyer’s notice; or
12.1.2
refund to the Buyer the price for those Goods (or parts thereof, as appropriate) which are defective;
but the Seller shall have no further liability to the Buyer in respect thereof and the Buyer may not reject the Goods if delivery is not refused or notice given by the Buyer as set out above.
12.2
No Goods may be returned to the Seller without the prior agreement in writing of the Seller. Subject thereto any Goods returned which the Seller is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection shall either be replaced free of charge or, at the Seller’s sole discretion the Seller shall refund or credit to the Buyer the price of such defective Goods but the Seller shall have no further liability to the Buyer.
12.3
The Seller shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to improper handling, post-processing, storage, installation, or failure to follow the Seller’s instructions (whether given orally or in writing) or accepted industrial practices, misuse, further processing, modification, or repair of the Goods without the Seller’s prior approval, or any other act or omission on the part of the Buyer, its employees or agents or any third party.
12.4
Subject as expressly provided in these Terms and Conditions and any Warranty Terms published by Zinergy UK Ltd. at the time the Acceptance Notice is provided, and except where the Goods are sold under a consumer sale, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
12.5
Except in respect of death or personal injury caused by the Seller’s negligence, or as expressly provided in these Terms and Conditions, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law or under statute, or under the express terms of the Contract, for any direct or consequential loss or damage sustained by the Buyer (including without limitation loss of profit or indirect or special loss), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its servants or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer.
12.6
The Buyer shall be responsible for ensuring that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labelling of the Goods, any use or sale of the Goods by the Buyer is in compliance with all applicable statutory requirements and that handling and sale of the Goods by the Buyer is carried out in accordance with directions given by the Seller or any competent governmental or regulatory authority and the Buyer will indemnify the Seller against any liability loss or damage which the Seller might suffer as a result of the Buyer’s failure to comply with this condition.
13. Buyer's Default
13.1
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:
13.1.1
cancel the order or suspend any further deliveries to the Buyer;
13.1.2
appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
13.1.3
charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 3% per month above the Bank of England 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).
13.2
This condition applies if:
13.2.1
the Buyer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract;
13.2.2
the Buyer becomes subject to an administration order or enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986 or the Insolvent Partnerships Order 1994 (as amended) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation;
13.2.3
an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer;
13.2.4
the Buyer ceases, or threatens to cease, to carry on business; or
13.2.5
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.
13.3
If sub-Clause 13.2 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 any 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.
14. Limitation of Liability
14.1
Subject to the provisions of Clauses 7, 8 and 12 the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
14.1.1
any breach of these Terms and Conditions or the Contract;
14.1.2
any use made (including but not limited to modifications) or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
14.1.3
any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
14.2
All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
14.3
Nothing in these Terms and Conditions excludes or limits the liability of the Seller:
14.3.1
for death or personal injury caused by the Seller’s negligence;
14.3.2
for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or
14.3.3
for fraud or fraudulent misrepresentation.
14.4
Subject to sub-Clauses 14.2 and 14.3:
14.4.1
the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price; and
14.4.2
the Seller shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
14.5
The Buyer shall indemnify and hold harmless the Seller from and against all third party claims arising from any infringement or purported infringement of intellectual property rights in connection with designs originating from the buyer, as well as the intended use of the Goods and shall reimburse the Seller for all Seller’s necessary expenses in connection with any such claims.
15. Confidentiality, Publications and Endorsements
15.1
The Buyer will regard as confidential the contract and all information obtained by the Buyer relating to the business and/or products of the Seller and will not use or disclose to any third party such information without the Seller's prior written consent provided that this undertaking shall not apply to information which is in the public domain other than by reason of the Buyer's default.
15.2
The Buyer will not use, authorise or permit any other person to use any name, trademark, house mark, emblem or symbol which the Seller is licensed to use or which is owned by the Seller upon any premises, note paper, visiting cards, advertisement or other printed matter or in any other manner whatsoever unless such use shall have been previously authorised in writing by the Seller and (where appropriate) its licensor.
15.3
The Buyer will use all reasonable endeavours to ensure compliance with this Clause 15 by its employees, servants and agents.
15.4
The provisions of this Clause 15 shall survive the termination of the Contract.
16. Communications
16.1
All notices under these Terms and Conditions and under the Contract shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
16.2
Notices shall be deemed to have been duly given:
16.2.1
when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; or
16.2.2
when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
16.2.3
on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
16.2.4
on the tenth business day following mailing, if mailed by airmail, postage prepaid.
16.3
All notices under this Agreement shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
17. Force Majeure
Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
18. Waiver
The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
19. Severance
The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that those provisions shall be deemed severed from the remainder of these Terms and Conditions (and, by extension, the Contract). The remainder of these and the Contract shall be valid and enforceable.
20. Third Party Rights
A person who is not a party to the Contract shall have no rights under the Contract pursuant to the Contracts (Rights of Third Parties) Act 1999.
21. Law and Jurisdiction
21.1
These Terms and Conditions and the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales.
21.2
Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or to the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
1. Interpretation
1.1
In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
Acceptance Notice means the written acceptance of an Order provided by the Seller to the Buyer confirming the identity and quantity of Goods to be sold to the Buyer at the stated unit price and overall Contract Price, as well as the Delivery Date and Delivery Location to which the Goods will be delivered.
Business Day(s) means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours means the period from 9:00 am to 5:00 pm on any Business Day.
Buyer means the person or firm who accepts a quotation or offer for the sale of the Goods from the Seller.
Contract means the contract between the Seller and the Buyer for the sale and purchase of the Goods in accordance with these Terms and Conditions.
Contract Price means the price stated in the Contract payable for the Goods.
Delivery Date means the date on which the Goods are to be delivered as stipulated in the Seller’s Acceptance Notice or other such date as the Parties may agree in writing.
Delivery Location means the location specified in the Seller’s Acceptance Notice or such other location as the parties may agree in writing.
Force Majeure Event means an event, circumstance or cause beyond a party's reasonable control. Such causes include, but are not limited to: Power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question.
Goods means the goods (including any instalment of the goods or any parts for them) set out in the Order.
Order means the Buyer’s order for the Goods, as set out in the Acceptance Notice, or the Buyer’s written acceptance of the Seller’s quotation, as the case may be.
Month means a calendar month.
Non-Recurring Expense means one-time, non-refundable expenses incurred by the Seller to develop novel Goods for the Buyer.
Seller means Zinergy UK Ltd., a company registered in England and Wales with company number 09561538 and registered office at the Future Business Centre, Kings Hedges Road, Cambridge CB4 2HY.
Specification means any specification for the Goods, including any related plans and drawings, that are provided in the Acceptance Notice, Seller’s sales documentationat the time the Seller accepts an Order, or is agreed in writing by the Buyer and the Seller.
Terms and Conditions means the terms and conditions set out in this document as amended from time to time in accordance with clause 3.3. S
Warranty Terms means the warranty provisions as set out in clause 13.
1.2
Unless the context otherwise requires, each reference in these Terms and Conditions to:
1.2.1
A reference to writing or “written” includes email but excludes fax.
1.2.2
A reference to legislation or a legislative provision is a reference to it as amended or re-enacted.A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
1.2.3
A Clause or paragraph is a reference to a Clause of these Terms and Conditions or a paragraph of the relevant Schedule.
1.2.4
A “Party” or the “Parties” refer to the parties to these Terms and Conditions.
1.3
The headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions.
1.4
Words imparting the singular number shall include the plural and vice versa.
1.5
References to any gender shall include the other gender.
2. Application Of Terms And Conditions
2.1
These Terms and Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2
The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Terms and Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable Specifications are complete and accurate.
2.3
The Order shall only be deemed to be accepted when the Seller issues or performs the earlier of:
2.3.1
A written Acceptance Notice;
2.3.2
delivery of any of the Goods; or
2.3.3
the Seller’s invoice;
at which point and on which date the Contract shall come into existence.
2.4
The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Terms and Conditions.
2.5
Any samples, drawings, descriptive matter or advertising produced by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6
A quotation for the Goods given by the Seller shall not constitute an offer. A quotation shall only be valid for a period of thirty (30) Business Days from its date of issue or such lesser time as the Seller may specify.
3. Basis of Sale
3.1
The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing.
3.2
In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not confirmed in the Acceptance Notice.
3.3
No variation of this Contract shall be effective unless it is in writing and signed by the Parties (or their authorised representatives).
3.4
Any typographical, clerical or other accidental errors or omissions 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.
4. Orders and Specifications
4.1
The Specification shall be that set out in the Seller’s sales documentation at the time the Order is accepted unless varied expressly in the Acceptance Notice.
4.2
The Seller reserves the right to make any changes in the Specifications which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Buyer’s Specification, which do not materially affect their quality or performance.
4.3
No Order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller 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 such cancellation.
5. Price
5.1
The Contract Price shall be the price stated in the Acceptance Notice or Quotation, in that order of precedence.
5.2
Where the Seller has quoted a price for the Goods the price quoted shall be valid for 30 (thirty) days only or such lesser time as the Seller may specify.
5.3
The Seller reserves the right, by giving written 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 (including, 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 are 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.
5.4
Except as otherwise stated under the terms of any quotation or and unless otherwise agreed in writing between the Buyer and the Seller, all prices for the Goods are exclusive of the Seller’s costs and charges for packaging, insurance and transport of the Goods which shall be invoiced to the Buyer.
5.5
The Contract Price is exclusive of any applicable value added tax, excise, sales taxes, import duties or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods, which the Buyer shall be additionally liable to pay.
6. Payment
6.1
Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall invoice the Buyer for the Contract on or at any time after completion of delivery.
6.2
The Buyer shall pay each invoice within 30 (thirty) days of the date of the Seller’s invoice or otherwise in accordance with such credit terms as may have been agreed in writing between the Buyer and the Seller in respect of the Contract. Payment shall be made on the due date notwithstanding that the title in the Goods has not passed to the Buyer. The time for payment shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
6.3
All payments shall be made to the Seller as indicated on the Acceptance Notice or invoice issued by the Seller.
6.4
The Seller is not obliged to accept an Order from any Buyer who has not supplied the Seller with references satisfactory to the Seller. If at any time the Seller is not satisfied as to the creditworthiness of the Buyer it may give notice in writing to the Buyer that no further credit will be allowed to the Buyer in which event no further goods will be delivered to the Buyer other than against cash payment and notwithstanding clause 6.2 of these Terms and Conditions, all amounts owing by the Buyer to the Seller shall be immediately payable in cash.
7. Delivery
7.1
Delivery of the Goods shall be deemed completed when the Seller unloads the Goods at the Delivery Location.
7.2
Any dates including the Delivery Date are approximate only and time for delivery shall not be of the essence unless otherwise agreed by the parties and recorded in the Acceptance Notice.
7.3
The Goods may be delivered by the Seller in advance of the Delivery Date upon giving reasonable notice to the Buyer.
7.4
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 Terms and 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.
7.5
If the Buyer fails to take delivery of the Goods or any part of them at the Delivery Location and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that Delivery Date, the Seller shall be entitled upon giving written notice to the Buyer to store or arrange for the storage of the Goods and then,notwithstanding the provisions of clause 10.1, risk in the Goods shall pass to the Buyer, delivery shall be deemed to have taken place and the Buyer shall pay to the Seller all costs and expenses including storage and insurance charges arising from such failure.
8. Non-Delivery
If the Seller fails to deliver the Goods or any part thereof within 60 days of the Delivery Date, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Seller shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Buyer’s failure toprovide the Seller with adequate delivery instructions or suitable access to the Delivery Location,or any other instructions that are relevant to the supply or delivery of the Goods.
9. Inspection Of Delivery
9.1
The Buyer is under a duty whenever possible to inspect the Goods on delivery or collection as the case may be.
9.2
Where the Goods cannot be examined on immediate receipt of the Goods, the Buyer shall inspect the Goods within 10 Business Days.
9.3
The Seller shall be under no liability for any shipping damage or shortages that would be apparent on reasonable careful inspection if the provisions of this Clause 9 are not complied with and, in any event, will be under no liability if a written complaint is not delivered to the Seller within 20 Business Days of delivery detailing the alleged shipping damage or shortage.
9.4
In all cases where complaints ofshipping damage or shortages are made,the Seller shall be under no liability in respect thereof unless an opportunity to inspect the Goods as delivered is supplied to the Seller before any use is made thereof or any alteration or modification is made thereto by the Buyer.
9.5
Subject to clauses 9.3 and 9.4, the Seller shall make good any shortage in the Goods and where appropriate replace any Goods damaged in transit as soon as it is reasonable to do so, but otherwise shall be under no liability whatsoever arising from such shortage or damage.
10. Risk and Retention of Title
10.1
Risk in the Goods shall pass to the Buyer on completion of delivery at the Delivery Location or, if the Buyer wrongfully fails to take delivery of the Goods at that location, at the time when the Seller has tendered delivery of the Goods.
10.2
Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, legal and beneficial title of the Goods shall not pass to the Buyer or to any third party to whom the Buyer sends the Goods until the Seller has received in cash or cleared funds payment in full of the price of the Goods.
10.3
Until payment has been made to the Seller in accordance with these Terms and Conditions and the Contract and title in the Goods has passed to the Buyer, the Buyer shall be in possession of the Goods as principal and not as the Seller’s agent and the Buyer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by the Seller and shall insure the Goods against all reasonable risks.
10.4
The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all money owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
10.5
The Seller reserves the right to repossess any Goods in which the Seller retains title without notice. The Buyer irrevocably authorises the Seller to enter the Buyer’s or any other premises where the Goods are located during normal business hours for the purpose of repossessing the Goods in which the Seller retains title or inspecting the Goods to ensure compliance with the storage and identification requirements of clause 10.3.If the Buyer incorporates the Goods irremovably into Buyer’s products before payment has been made in full in accordance with clause 10.3, Seller maintains the right to repossess any Goods in which the Seller retains title without notice.
10.6
Payment by Buyer of any Non-Recurring Expenses for items such as, but not limited to, tooling, screens, or test jigs will not vest any right or title for such items in the Buyer, and Seller will have unlimited right and authority to use such items to produce or sell identical Goods to others unless otherwise agreed by both Parties in writing.
10.7
The Buyer’s right to possession of the Goods in which the Seller maintains legal and beneficial title shall terminate if:
10.7.1
the Buyer commits or permits any material breach of his obligations under these Terms and Conditions;
10.7.2
the Buyer enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986, the Insolvent Partnerships Order 1994 (as amended), or any other scheme or arrangement is made with his creditors;
10.7.3
the Buyer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors;
10.7.4
the Buyer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Buyer, notice of intention to appoint an administrator is given by the Buyer or any of its directors or by a qualifying floating charge-holder (as defined in paragraph 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer.
11. Assignment
11.1
The Seller may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with or any of its rights or obligations under the Contractor assign any part of it to any person, firm or company without the prior consent of the Buyer.
11.2
The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
12. Buyer's Default
12.1
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:
12.1.1
cancel the order or suspend any further deliveries to the Buyer;
12.1.2
appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
12.1.3
charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 3% per month above the Bank of England 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).
12.2
This condition applies if:
12.2.1
the Buyer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract;
12.2.2
the Buyer becomes subject to an administration order or enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986 or the Insolvent Partnerships Order 1994 (as amended) or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation;
12.2.3
an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer;
12.2.4
the Buyer ceases, or threatens to cease, to carry on business; or
12.2.5
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.
12.3
If clause 12.2 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 any 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.
13. Warranty
13.1
The Seller warrants to the Buyer that the Goods shall, unless specifically stated in an Acceptance Notice, for a period of one year (the Warranty Period) from the date of completion of delivery:
13.1.1
Conform to the Specification for the Goods
13.1.2
The goods will be free from material defects in materials and workmanship.
13.2
Any Goods replaced under Warranty will be warranted for the unexpired portion of the Warranty Period.
13.3
Seller does not warrant or guarantee the technical advice given by it in connection with the installation or use of the Goods, or the performance of any system or component part to which the Goods are attached or incorporated, and Seller disclaims any implied fitness for a particular purpose.
13.4
Clauses 14 and 15 set out the Buyer’s sole and exclusive remedies (howsoever arising, whether in contract, tort, negligence or otherwise) for any breach by the Seller of clause 13.1. Except as set out in this clause 13, the Sellergives no warranty or undertaking and makes no representations in relation to the Goods, and all warranties, terms and conditions (including the conditions implied by sections 13 to 15 of the Sale of Goods Act 1979) whether express or implied by statute, common law or otherwise are excluded to the extent permitted by applicable law.
14. Defective Goods
14.1
If, within the Warranty Period, any of the Goods are believed to be defective in any material respect the Buyer must give written notice of such defect to the Seller within 10 Business Days of identifying such defect. On receipt of such written notice Seller may request the defective Goods, or samples thereof, to be returned to Seller. No Goods may be returned to the Seller without the prior written agreement of the Seller. Subject thereto any returned Goods, or Goods at the Seller’s sole discretion, which the Seller is satisfied were supplied subject to defects of quality or condition which would not be apparent on initial inspection shall, subject to clause 14.2, either be replaced free of charge or, at the Seller’s sole discretion, the Seller shall refund or credit to the Buyer the price of such defective Goods. The Seller shall have no further liability to the Buyer for defective Goods, even if the defective Goods have been incorporated into Buyer’s products.
14.2
The Seller shall be under no liability in respect of any defect arising as a result of:
14.2.1
Following explicit instructions relating to the Specification of the Goods given by the Buyer;
14.2.2
fair wear and tear;
14.2.3
wilful damage, negligence, misuse, modification, repair, or processing after discovery of the defect;
14.2.4
subjection of the Goods to improper handling, post-processing, storage, installation, usage (including improper electrical connection);
14.2.5
failure to follow the Seller’s instructions (whether given orally or in writing) or accepted industrial practicesof the Goods without the Seller’s prior approval;
14.2.6
Buyer’s failure to meet its obligations in respect of the Contract; or
14.2.7
any other act or omission on the part of the Buyer, its employees or agents or any third party.
15. Limitation Of Liability
15.1
Nothing in these Terms and Conditions excludes or limits the liability of the Seller:
15.1.1
for death or personal injury caused by the Seller’s negligence;
15.1.2
for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or
15.1.3
for fraud or fraudulent misrepresentation.
15.2
Subject to clauses 13 and 14:
15.2.1
the Seller’s total liability to the Buyer in contract, tort (including negligence or breach of statutory duty), misrepresentation (including liability for the acts or omissions of its employees, agents and sub-contractors), restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price; and
15.2.2
the Seller shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
15.3
The Buyer shall indemnify and hold harmless the Seller from and against all third-party claims arising from any infringement or purported infringement of intellectual property rights in connection with designs originating from the buyer, as well as the use of the Goods and shall reimburse the Seller for all Seller’s necessary expenses in connection with any such claims.
15.4
The Buyer shall be responsible for ensuring that any use or sale of the Goods by the Buyer is in compliance with all applicable statutory requirements and that handling and sale of the Goods by the Buyer is carried out in accordance with directions given by the Seller or any competent governmental or regulatory authority and the Buyer will indemnify the Seller against any liability loss or damage which the Seller might suffer as a result of the Buyer’s failure to comply with this condition.
16. Confidentiality, Publications And Endorsements
16.1
The Buyer will regard as confidential the contract and all information obtained by the Buyer relating to the business and/or products of the Seller and will not use or disclose to any third party such information without the Seller's prior written consent provided that this undertaking shall not apply to information which is in the public domain other than by reason of the Buyer's default.
16.2
The Buyer will not use, authorise or permit any other person to use any name, trademark, house mark, emblem or symbol which the Seller is licensed to use or which is owned by the Seller upon any premises, note paper, visiting cards, advertisement or other printed matter or in any other manner whatsoever unless such use shall have been previously authorised in writing by the Seller and (where appropriate) its licensor.
16.3
The Buyer will use all reasonable endeavours to ensure compliance with this clause 16 by its employees, servants and agents.
16.4
The provisions of this clause 16 shall survive the termination of the Contract.
17. Notices
17.1
Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
17.1.1
delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case);
17.1.2
sent by email to the following addresses (or an address substituted in writing by the party to be served):
Seller: [email protected]
Buyer: addressed to the most recent e-mail address provider by the Buyer to the Seller.
Seller: [email protected]
Buyer: addressed to the most recent e-mail address provider by the Buyer to the Seller.
17.2
Any notice shall be deemed to have been received:
17.2.1
if delivered by hand, at the time the notice is left at the proper address;
17.2.2
if sent by pre-paid first-class post or othernext working day delivery service, at 9.00 amon the second Business Day after posting; or
17.2.3
if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
17.3
This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
18. Force Majeure
If either Party is prevented from or delayed in carrying out any of the provisions of this Agreement by reasons of war, accidents, labour disturbances, breakdown of plant equipment, lack or failure of transportation facilities, source of supply of labour, raw materials, power or supplies, pandemic, epidemic, or by reasons of law, order proclamation, regulation, ordinance, demand or requirement of any government or any subdivision, authority or representative of any such government, or by reason of any other cause whatsoever beyond the reasonable control of the Party, the Party so prevented or delayed shall be excused from such performance to the extent and during the period of such prevention or delay, without, changing the terms of this Agreement. Any obligation to pay money shall in no event be excused but shall be suspended only until the cessation of any cause of prevention from or delay in the performance of such obligation.
19. Waiver
Each party agrees thata delay or a failure by either Party to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver for any subsequent right or remedy.
20. Severance
If any provisions of the Contract is or becomes invalid, illegal or otherwise unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 19, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
21. Third Party Rights
The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
22. Law And Jurisdiction
The Contract, and any dispute or claim(including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.