Terms & Conditions
Terms & Conditions of Sale
1.1 In these Conditions:-
(a) the Public Bodies Corrupt Practices Act 1889;
(b) the Prevention of Corruption Acts 1889 – 1916 as amended by the Anti-Terrorism, Crime and Security Act 2001;
(c) the US Foreign Corrupt Practices Act 1977, as amended;
(d) the Bribery Act 2010 from its commencement;
(e) the United Nations Convention Against Corruption;
(f) OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions; and
(g) all other legislation, and all rules or regulations of any kind, including orders, instructions or directions of any competent authority, and all related official guidance in each case relating to anti-bribery or anticorruption in any jurisdiction(s) in which the Buyer operates;
“Buyer” means the customer named overleaf;
“Contract” means contract for the purchase and sale of the Goods and Services in accordance with Condition 3;
“Conditions” means the terms and conditions set out below;
“Confidential Information” in relation to the Buyer or the Seller, all information and trade secrets relating to its business or customers which come into the possession of the other party pursuant to the Contract, whether orally, or in documentary, electronic or other form;
“Goods” means the goods (including any instalments, parts or documentation) which the Seller is to supply;
“Government Representative” an employee or official of any department, agency, subdivision or other body of any federal, regional or municipal or central government, public or local authority, any commercial or similar entities that the government controls or owns (whether partially or completely), including any state-owned and stateoperated companies or enterprises and any political party;
“Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made;
“Insolvency Event” each and any of the following in relation to the Buyer or the Seller (being the “Relevant Party”):
(a) any action (corporate or otherwise), legal proceedings or other procedure or step is taken by any person in any jurisdiction in relation to or with a view to: (i) the winding up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) of the Relevant Party (except that no right to terminate will arise in respect of any procedure commenced for the purpose of a solvent amalgamation or reconstruction); (ii) the appointment of a liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, administrative receiver, administrator, nominee, supervisor or similar officer in respect of the Relevant Party or any of its assets; (iii) the enforcement of any security over any assets of the Relevant Party; or (iv) the expropriation, attachment, sequestration, distress or execution over or affecting any material asset of the Relevant Party;
(b) the Relevant Party is unable to pay its debts as they fall due or is insolvent; or
(c) the Relevant Party enters into a composition or arrangement with its creditors or any class of them; “Order” An order in writing (including email) for Goods or Services issued by the Buyer and accepted by the Seller in accordance with Condition 3;
“Regulations” all legislation, and all rules or regulations of any kind, including orders, instructions or directions of a competent authority, and all related official guidance, whether enacted or enforced by any competent authority with whose decision or determination it is good industry practice to comply;
“Seller” means Elfab Limited (registered in England under number 853197);
“Services” means the services (including any repair work or instalments) which the Seller is to perform; and
“Special Conditions” means any special conditions governing the Contract in addition to these Conditions where agreed in writing by the Seller and annexed hereto.
1.2 In these Conditions:-
1.2.1 any gender includes any other gender;
1.2.2 headings shall not affect interpretation;
1.2.3 any reference to a statutory provision includes a reference to any modification or re-enactment of the provision from time to time in force;
1.2.4 references to the “Goods”, the “Contract”, the “Services” or any payment includes any part of any of them.
2. BASIS OF THE SALE
2.1 The Seller is prepared to sell goods and services or to enter into an agreement to sell goods and services on the provisions of these terms only, to the exclusion of any terms and conditions which the Buyer purports to apply or which are implied by trade, custom or course of dealing, which are hereby rejected or (as appropriate) shall be excluded from the Contract.
2.2 These Conditions, together with the Special Conditions (if any) and the order constitute the entire agreement between Buyer and Seller for the supply of the Goods and the Services. If there is any conflict or inconsistency between these Conditions and the Special Conditions, the Special Conditions shall prevail to the extent of the conflict or inconsistency.
2.3 The Seller’s employees or agents are not authorised to make any representation concerning the Goods or Services unless confirmed by the Seller in writing, and the Buyer undertakes not to rely on, and hereby waives any claim for breach of, any unconfirmed representation which is not made fraudulently.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer 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.
2.5 Any prices, charges, samples, drawings, descriptions, or advertising of or relating to goods or services available from the Seller issued or published by the Seller, including those contained in catalogues, brochures or on a website (all or any of these forms of communication being “Promotional Material”), are issued or published in order to give an idea of the goods or services described in them and the associated charges or prices (as appropriate), and they shall not form part of the Contract or any other contract of sale of the Goods or the supply of Services, or any agreement to sell the Goods or supply the Services, between the Seller and the Buyer, or any collateral contract.
2.6 The Seller is not bound by, and hereby excludes liability for, any error in or omission from (other than a fraudulent one) Promotional Material which is manifest or which ought reasonably to be considered apparent to the Buyer, and the Buyer undertakes not to rely on any such error or omission, or to enforce rights or bring any claim against the Seller on the basis of the Promotional Material to the extent of such error or omission.
3. QUOTATIONS, ORDERS AND SPECIFICATIONS
3.1 A quotation or any similar communication by the Seller is not an offer to sell or supply any goods or services, unless it is in writing and expressly described as an offer.
3.2 A quotation or any similar communication is valid only for the period stated in it, and in the absence of a period stated, for 30 days only and is subject to withdrawal or revision by the Seller at any time prior to dispatch.
3.3 Each Order for either or both Goods and Services by the Buyer is an offer by the Buyer to purchase either or both Goods and Services subject to these Conditions.
3.4 No Order submitted by the Buyer is accepted by the Seller until the Seller confirms its written acceptance or (if earlier) the Seller delivers the Goods or supplies the Services to the Buyer, acceptance of an order in accordance with this condition 3.4 shall result in a contract.
3.5 The Buyer must ensure that the terms of any Order (including any specification) are complete and accurate and that it provides the Seller with any necessary information relating to the Goods and Services within a sufficient time to enable the Seller duly to perform the Contract.
3.6 The Seller reserves the right to make any changes in the specification of the Goods or Services which are required for the Goods or Services to conform with any Regulations which do not materially affect their quality or performance.
4. CANCELLATION AND DELAY
4.1 No Order may be cancelled by the Buyer except with the Seller’s written agreement and on terms that the Buyer shall indemnify the Seller 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.
4.2 If the Buyer extends or delays the Contract or fails to take delivery of any Goods at the agreed time or (if no time is agreed) within a reasonable time then the Buyer shall indemnify the Seller against all loss (including loss of profit), costs (including the cost of storage and all labour and materials used), damages, charges or expense incurred by the Seller as a result of such extension, delay or failure.
4.3 The Seller reserves the right to defer the date of delivery or performance, to cancel the Contract or reduce the volume of Goods ordered without liability to the Buyer if it is prevented from or delayed in carrying on its business by any cause beyond the Seller’s reasonable control. In such circumstances, the Buyer may also give written notice to cancel the Contract if the cause in question continues for a continuous period in excess of 180 days but in any event shall remain liable to pay for Goods or Services delivered or supplied prior to such cancellation by the Seller or the Buyer.
5.1 The price of the Goods and Services is the Seller’s quoted price.
5.2 Any price quoted by the Seller for the Goods is exclusive of the cost of delivery to the Buyer (including transport, non-standard packaging, insurance and any taxes, duties or surcharges).
5.3 The price is exclusive of any applicable VAT.
6.1 Unless notified otherwise, payment of the price for the Goods and Services is due 30 days following the end of the month of invoice.
6.2 Time of payment is of the essence.
6.3 Any amount due to the Seller is not to be taken to have been made or received for the purposes of the Contract unless and until the amount is received by the Seller in cleared funds.
6.4 Payment by the Buyer shall be made without any deduction or set off.
6.5 Interest at an annual rate of 4% above the applicable Barclays Bank plc base rate will accrue daily (both before and after judgement) and be calculated on a daily basis on overdue accounts from the date of invoice until payment.
6.6 Despite any provision allowing credit, payment is due and payable to the Seller immediately upon cancellation or termination of the Contract.
6.7 The Seller shall be entitled to payment for all instalments of Goods delivered to the Buyer, whether under a blanket order or otherwise.
6.8 If the Buyer fails to make any payment on the due date then the whole price of all goods or services bought or agreed to be bought by the Buyer shall be immediately due and payable without demand and the Seller may:-
6.8.1 cancel the Contract or suspend deliveries or performance to the Buyer; and/or
6.8.2 appropriate any payment made by the Buyer to such of the Goods or Services (or the goods or services supplied under any other contract between the Buyer and the Seller) as the Seller thinks fit.
6.9 The Seller is entitled to set off sums owed by the Seller to the Buyer against sums owed by the Buyer to the Seller.
7.1 Delivery of the Goods shall be made ex works North Shields by the Company making the Goods available for collection by the Purchaser. The Company shall upon the Purchaser’s request and at the expense and risk of the Purchaser arrange carriage of the Goods to an agreed location and despatch from the Company works in North Shields shall be deemed to be delivered to the Purchaser unless the Contract states otherwise.
7.2 Delivery of the Goods shall be within the time agreed and if no time is agreed, within a reasonable time 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 delivery is agreed by the Seller, by the Seller delivering the Goods to that place at the Buyer’s cost. The Seller may make delivery by instalments.
7.3 Any dates for either or both of delivery and performance are approximate only and time of either or both of delivery and/or performance is not of the essence.
7.4 No claim for damage or shortages will be considered unless the Seller is given written notice within seven days of delivery. If no such notice is received by the Seller, the Buyer is deemed to have accepted the Goods.
7.5 No claim for non-delivery will be considered unless the Seller is given written notice within seven days of the date when the Goods would in the ordinary course of events have been received.
7.6 Any claim for damage, shortages or non-delivery must also be notified to the carrier by the Buyer in the manner and within the appropriate time limits prescribed by the carrier’s terms and conditions.
7.7 In the event of failure by the Buyer to give the appropriate notices as specified by Conditions 7.3 to 7.5 any claim by the Buyer is deemed to have been waived.
7.8 Where the Goods are to be delivered or Services are to be performed in instalments, each delivery or performance shall be a separate contract and failure by the Seller to deliver or perform 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 instalment shall not entitle the Buyer to treat the Contract as a whole as repudiated.
7.9 If the Buyer fails to take delivery of the Goods or the Seller is unable to deliver the Goods on time because the Buyer has not provided adequate instructions, documents, licences or authorisations, then the Goods are deemed delivered and the Seller may:-
7.9.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
7.9.2 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.
8. RISK AND PROPERTY
8.1 The Goods remain the property of the Seller until:-
8.1.1 their full price has been received by the Seller; and
8.1.2 all other sums which are or which become due from the Buyer on any account with the Seller have been received by the Seller.
8.2 If payments received from the Buyer are not stated to refer to a particular invoice the Seller may appropriate such payments to any outstanding invoice.
8.3 Risk of loss or damage to the Goods passes to the Buyer on delivery.
8.4 Until ownership of the Goods passes to the Buyer, the Buyer must:-
8.4.1 hold the Goods as the Seller’s fiduciary bailee;
8.4.2 store them at its own cost on its premises separately from any other goods and in a manner which makes them readily identifiable as the goods of the Seller;
8.4.3 not destroy, deface or obscure any identifying mark or packaging of the Goods;
8.4.4 maintain the Goods in a satisfactory condition insured on the Seller’s behalf for their full price against all risks; and
8.4.5 hold the proceeds of insurance referred to in Condition 8.4.4 on trust for the Seller and not mix them with any other money, nor pay the proceeds into an overdrawn account.
8.5 The Seller may at any time recover or resell the Goods until they are owned by the Buyer.
8.6 In order to verify the Buyer’s compliance with its obligations under Condition 8.4 and to exercise its rights under Condition
8.5, the Seller shall be entitled by its employees or agents without notice to enter the Buyer’s premises and the Buyer shall at the request of the Seller procure the right for the Seller, its employees or agents to enter any premises of a third party where the Goods are stored for the purpose of this Condition 8.6.
8.7 The Buyer’s right to possession of the Goods terminates immediately if any of the events set out in Condition 14 occurs.
8.8 If the Goods shall be sold by the Buyer before payment for them has been made that part of the proceeds of sale which represents or is equivalent to the amount owed by the Buyer to the Seller shall be held by the Buyer upon trust for the Seller and shall be paid into a separate bank account designated for that purpose. The Seller shall be entitled to trace the proceeds of any such sale(s) into such bank account (or wherever such proceeds may in fact be located) and the Buyer authorises the Seller to make enquiries of its bankers (or otherwise as appropriate) relating to such proceeds.
8.9 The Buyer shall ensure that the Goods are not incorporated in or mixed with or used as part of other goods before full payment for the Goods has been made to the Seller, although if such incorporation or mixing takes place, the property in those Goods which remain identifiable and/or severable from such other goods shall remain with the Seller until payment has been made or such other goods have been sold and all the Seller’s rights in the Goods shall extend to such part of those other goods and to their proceeds of sale, which shall be held by the Buyer in accordance with Condition 8.8.
9. RESALE OF GOODS
9.1 It is the responsibility of the Buyer to ensure that no marking or label affixed to the Goods referring the user to the Seller’s instructions and/or recommendations for use is removed, tampered with or disfigured in any way.
9.2 If any item comprised in the Goods is resold by the Buyer, the Buyer shall:-
9.2.1 bring to the purchaser’s attention all the Seller’s instructions and/or recommendations for use which are packed with or appearing on the Goods or which the Seller has notified to the Buyer; and
9.2.2 be responsible for providing full and accurate translations in all relevant languages where the Goods go overseas.
10.1 The Seller warrants that subject to Clause 10.3, the Goods shall be:-
10.1.1 free from defects in materials and workmanship;
10.1.2 in accordance with the Order; and
10.1.3 in accordance with any specification, for the period of twelve (12) months from delivery, except in the case of Goods from the Seller’s Opti-Gard™ range in which case the warranty provided in accordance with this Clause 10.1 shall be for the period of thirty six (36) months from delivery.
10.2 The Services shall be provided in accordance with the Order, good industry practice and the Regulations.
10.3 The Seller is not liable under Clause 10.1 and 10.2 where:
10.3.1 the price has not been paid in full and for so long as it or part of it remains outstanding;
10.3.2 a defect arises from any or all of the following:
10.3.2.1 fair wear and tear;
10.3.2.2 the Goods conforming with information, drawings or specifications supplied by or on behalf of the Buyer;
10.3.2.3 alteration of the Goods (other than by or on behalf of the Seller) including, but not limited to:
10.3.2.3.1 removal of tag or flow indicator;
10.3.2.3.2 removal or tampering with the magnetic detector system;
10.3.2.3.3 damage to any surface of the disc; and
10.3.2.3.4 use of a sealing compound between the disc and holder;
10.3.2.4 repair of the Goods (other than by or on behalf of the Seller);
10.3.2.5 failure to follow or to follow fully Seller’s instructions (whether oral or written) or maintenance requirements;
10.3.2.6 the Goods have been improperly installed (unless the Seller carried out the installation and connection), such improper installation may include but not be limited to:
10.3.2.6.1 torque settings being incorrect during installation; and
10.3.2.6.2 the Goods not being fitted to the type of holder specified in the Order (the holder being free from defects and
of the correct specification (including flanges) and fitted with flanges fully aligned and in parallel);
10.3.2.7 wilful damage, misuse, or negligence; or
10.3.3 the Goods include any form of liners;
10.3.4 the Buyer is unable to demonstrate through adequate monitoring (including, but not limited to, monitoring pressure, cycling, process medium and process medium type) at the location of the installed Goods that the Goods were operated within the specified parameters contained in the Order or subsequently notified to the Buyer;
10.3.5 the Buyer fails to conduct an annual service of the Goods from the date of installation, including a full visual inspection of the Goods and holder, following which the Buyer shall provide records of the status of the Goods to the Seller;
10.3.6 the Goods fail whilst being operated in a vacuum and no vacuum support was included in the specification (where vacuum support was included the Buyer must be able to demonstrate pressure reach was only vacuum and not higher);
10.3.7 any magnetic detection system in the Goods fails (if applicable) and the Buyer is unable to demonstrate the use of the Seller’s Test-Tel tool during installation in order to verify correct alignment and connection of the Flo-Tel™ system;
10.3.8 exclusions detailed in any warranty specific to the Goods and notified to the Buyer at the time of purchase apply; or
10.3.9 the Services are provided based upon information provided by the Buyer, its employees or agents.
11.1 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or Services or their failure to correspond with specification must (whether or not delivery is refused by the Buyer) be notified to the Seller and the Seller’s carriers within seven days from the date of delivery or performance or, where the defect or failure was not apparent on reasonable inspection, within a reasonable time after discovery of the defect or failure.
11.2 In no event shall the Buyer be entitled to reject the Goods on the basis of any defect or failure which is so slight that it would be unreasonable for the Buyer to reject them.
11.3 If the Buyer does not notify claims in accordance with Condition 11.1 then:-
11.3.1 the Buyer shall not be entitled to reject the Goods and/or Services; and
11.3.2 the Seller shall have no liability for such defect or failure; and
11.3.3 the Buyer shall be bound to pay the full price for the Goods and/or Services
11.4 In the event the Buyer has a valid claim which has been notified to the Seller pursuant to Condition 11.1, the Seller shall be entitled to repair or replace the Goods or carry out the Services again (or the part or element in question) free of charge or, at the Seller’s option, refund to the Buyer the price of the Goods or Services (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
11.5 If the Buyer is entitled to reject the Goods because all or part of the Goods are defective, the Buyer must reject all of the Goods and cannot keep some of the Goods and reject the remainder.
12 LIMITATION OF LIABILITY
12.1 The following provisions of this Condition 121 set out the maximum liability of the Seller in respect of the following (each being an “Event of Default”):
12.1.1 a breach by the Seller of the Contract, including any wilful or deliberate breach of contract; and
12.1.2 a tortious act or omission (including negligence), breach of statutory duty, or misrepresentation or misstatement, of the Seller in connection with the Contract, and nothing in this Contract shall affect the liability of the Seller for death or personal injury, fraud, or any other liability to the extent it cannot be excluded or limited by law.
12.2 The Seller’s total financial liability for all Events of Default during the term of the Contract shall not exceed an amount equal to all amounts paid under the relevant Contract.
12.3 In no event shall the Seller be liable, whether for breach of contract, any tortious act or omission (including negligence) or otherwise, under or in connection with the Contract for all loss, damage, cost and expense for which the Buyer has assumed the risk under the Contract, loss of profit, loss of reputation, loss of business, revenue or goodwill, anticipated savings, loss or damage to data, or for any consequential or indirect loss, and regardless of whether the loss or damage would arise in the ordinary course of events, is reasonably foreseeable, is in the contemplation of the parties, or otherwise.
12.4 All warranties, conditions or terms not set out in the Contract and which would otherwise be implied or incorporated into the Contract by statute, common law or otherwise (other than as to statutory interest, and title to goods) are hereby excluded except to the extent they may not be excluded or limited by law.
12.5 The price of the Contract is determined on the basis of the exclusions from and limitations of liability contained in the
12.6 The Buyer accepts that these exclusions and limitations are reasonable because of (amongst other matters) the likelihood that otherwise the amount of damages awardable to the Buyer for an Event of Default of the Seller may be disproportionately greater than the price of the Contract.
The Buyer agrees to indemnify the Seller against any damages, losses, costs, claims or expenses incurred by the Seller towards a third party arising out of or in connection with the Goods or Services supplied by the Seller or their operation or use and whether arising by reason of the negligence of the Seller or otherwise.
14.1 Either party may by giving notice to the other terminate the Contract as from the date of expiry of the notice if the other commits a breach of this Contract which, in the case of a breach capable of remedy, is not remedied within thirty (30) days after the terminating party has given notice containing details of the breach, and requiring the breach to be remedied.
14.2 Either party may at any time, by notice to the other, terminate this Contract as from the date of expiry of the notice if an Insolvency Event occurs in relation to the other.
14.3 Termination of the Contract shall not affect rights and duties accrued before termination and in particular shall not affect the Seller’s rights contained in Conditions 8 and 11, which survive termination of the Contract.
15 HEALTH AND SAFETY
The Buyer agrees to:-
15.1 pay due regard to all information supplied by the Seller relating to the use of the Goods necessary to ensure the Goods will be safe and without risk to health at all times when they are being set, used, cleaned or maintained by any person at work;
15.2 comply with Regulations if and to the extent that they are applicable to the Goods;
15.3 indemnify the Seller in respect of any and all claims arising from the Goods being unsafe as a result of the Buyer’s activities;
15.4 monitor the safety of the Goods, to pass on to the Seller information as to the risks of the Goods and to co-operate in any action the Seller decides to take to avoid those risks.
16.1 Where the Goods are to be exported to the Buyer the provisions of this Condition 16 shall apply.
16.2 Payment shall be made in England in pounds sterling or such currency as is agreed in writing by the Seller.
16.3 Where required by the Seller, the Buyer will establish and maintain in favour of the Seller an irrevocable letter of credit which shall:-
16.3.1 be confirmed by a UK clearing bank;
16.3.2 be payable on drafts drawn at sight upon presentation to the bank by the Seller of a certified copy of the Seller’s invoice;
16.3.3 be established at least 30 days prior to anticipated shipment date;
16.3.4 cover the full price of the Goods (including applicable taxes); and
16.3.5 be transferable.
16.4 All bank charges and other expenses in relation to the letter of credit shall be paid by the Buyer
16.5 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties the Goods.
16.6 Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered EXW (as that term is
defined in Incoterms) and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
16.7 The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
16.8 If there is any conflict between Incoterms and the Contract, the terms of the Contract prevail.
17.1 Each party undertakes to the other in relation to the Confidential Information of the other:
17.1.1 to keep confidential all Confidential Information;
17.1.2 not to disclose Confidential Information without the other’s prior written consent to any other person except those of its employees who have a need to know the Confidential Information;
17.1.3 not to use Confidential Information except for the purposes of performing its obligations under the Contract (and in particular not use Confidential Information to obtain a commercial, trading or any other advantage); and
17.1.4 to keep separate from all other information all Confidential Information in its possession or control.
17.2 The provisions of Condition 17.1 shall not apply to Confidential Information to the extent that it is or was:
17.2.1 already in the possession of the other free of any obligation of confidentiality on the date of its disclosure;
17.2.2 in the public domain other than as a result of a breach of this Condition 17;
17.2.3 required to be disclosed:
184.108.40.206 pursuant to applicable law, or the rules of any exchange on which the securities of a party are or are to be listed; or
220.127.116.11 in connection with proceedings before a court of competent jurisdiction or under any court order or for the purpose of receiving legal advice, but only to the extent and for the purpose of that disclosure.
17.2.4 Each party acknowledges that Confidential Information is valuable and that damages might not be an adequate remedy for any breach of Condition 17 and accordingly a party will be entitled, without proof of special damage, to an injunction and other equitable relief for any actual or threatened breach of Condition 17.
18.1 The Buyer shall not, and undertakes to procure that its employees, officers, agents, subcontractors, or anyone acting on their behalf shall not:-
18.1.1 directly or indirectly give, offer to give, agree to give or authorise the payment of, any gift or consideration of any kind as an inducement or reward to:-
18.104.22.168 any person;
22.214.171.124 any Government Representative;
126.96.36.199 any person acting for or on behalf of any Government Representative; or
188.8.131.52 any other person at the request of any Government Representative,
for the purpose of improperly obtaining, retaining or directing business or to secure or obtain any improper business
18.1.2 directly or indirectly accept any gift or consideration of any kind as an inducement or reward for the purpose of improperly obtaining, retaining or directing business or to secure or obtain any improper business advantage.
18.2 The Buyer represents, warrants and undertakes that it, or any person acting on its behalf, has:-
18.2.1 not undertaken any activity to which Clause 18.1 refers prior to the Contract (or any related agreement) being made;
18.2.2 implemented and maintained policies, procedures and controls which are reasonably expected to ensure, and to continue to ensure, compliance with all applicable Anti-Bribery Regulations; and
18.2.3 conducted, and will continue to conduct, its business in compliance with all applicable Anti-Bribery Regulations and so as not to contravene or commit any offence under such Anti-Bribery Regulations.
19.1 The Seller is a member of a group of companies and accordingly the Seller may perform any of its obligations or exercise any of its rights by itself or through any other member of its group.
19.2 Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller, whether or not under the Contract.
19.3 If any provision of the Contract is found by any competent authority to be invalid, unenforceable or unreasonable, it shall be severed from the remainder of the Contract which shall continue in full force and effect.
19.4 Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract is not a waiver of any of its rights under the Contract.
19.5 Any waiver by the Seller of any breach by the Buyer is not a waiver of any subsequent breach.
19.6 Any notice to be given under the Contract shall be in writing and shall either be delivered by hand or sent by first class pre-paid post (or in the case of overseas post, by airmail), facsimile transmission or e-mail. Delivery by courier shall be regarded as delivery by hand.
19.7 Notices shall be sent to the registered office or principal place of business of the relevant party to the Contract.
19.8 The Contract does not create, confer or purport to confer any benefit or right enforceable by any person not a party to it by virtue of the Contracts (Rights of Third Parties) Act 1999.
20.1 The Seller may assign or subcontract the Contract or any part of it and may dispose of or deal in any manner with any of its rights or beneficial interests under it.
20.2 The Buyer may not assign the Contract or dispose of or deal in any manner with any of its rights or beneficial interests under it.
21 ENGLISH LAW
21.1 The Contract shall be governed by English law, and the parties submit to the exclusive jurisdiction of the English courts.
21.2 Condition 21.1 is for the benefit of the Seller only and as a result the Seller shall not be prevented from taking proceedings in any other courts with jurisdiction, whether concurrently or not.
Terms & Conditions of Purchase
1.1 In these Conditions:-
“Contract” means each contract for the sale and purchase of Goods and the supply of Services on these Conditions;
“Goods” means the goods (including any installment, component, part of or raw materials used in such goods) described in an Order;
“Order” means our order for Goods and/or Services;
“Services” means the services (if any) described in an Order.
2. BASIS OF PURCHASE
2.1 Our Order constitutes an offer by us to buy the Goods and/or the Services subject to these Conditions. Any offer and/or acceptance of an Order by you shall be deemed to constitute an agreement to comply with these Conditions.
2.2 These Conditions shall apply to each Contract to the exclusion of any other terms and conditions.
2.3 No variation to an Order or these Conditions shall be binding unless agreed in writing by our authorised representative.
3. SPECIFICATIONS & EQUIPMENT
3.1 The quantity, quality and description of the Goods and the Services shall be as specified in our Order and/or in any specification supplied.
3.2 Any specification produced or supplied together with the copyright, design rights and any intellectual property rights shall be our exclusive property.
3.3 Goods made to our specification shall not be manufactured for or supplied to any other party.
3.4 We shall be entitled to inspect and test the Goods during manufacture, processing or storage prior to despatch, without relieving you of your obligations.
3.5 You shall comply with all applicable regulations and legal requirements concerning the manufacture, packaging, labeling, packing and delivery of the Goods and the performance of the Services.
3.6 The Goods shall be marked in accordance with our instructions (if any) and any applicable regulations or requirements of the carrier and properly packed and secured so as to reach their destination in an undamaged condition.
3.7 All equipment paid for or provided by us shall be and remain our property and must be returned to us in good condition upon request and shall not be copied or used for any purpose other than completion of the Order.
4.1 The price of the Goods and the Services shall be as stated in the Order and, unless otherwise so stated, shall be exclusive of any applicable VAT and inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery.
4.2 No increase in the price may be made for any reason without our prior written consent.
5.1 You shall provide to us such information about the Goods and any components, parts or raw materials used in manufacturing the Goods as we consider necessary including information relating to possible risks to health and safety and environment.
6.1 Unless otherwise stated by us, we shall pay the price of the Goods and the Services in cash, by the last day of the month following the month in which the Goods are delivered or Services performed or, if later, after acceptance of the Goods or Services in question.
6.2 Time of payment shall not be of the essence.
6.3 We may set off against the price any sums owed to us by you.
7.1 Delivery shall be deemed to be made on receipt of the Goods and/or Services by us in our normal business hours in accordance with the terms of the Contract.
7.2 Time of delivery of the Goods and of performance of the Services is of the essence. Notwithstanding this, if for any reason we request delivery or performance to be delayed, you shall agree to such request at no extra cost to us and the provisions of this condition 7 shall apply to any such revised date for delivery or performance.
7.3 A delivery note quoting our order number must accompany each delivery.
7.4 Delivery or performance by installments is not accepted by us unless previously agreed in writing. If Goods are to be delivered or Services are to be performed by installments, the Contract will be treated as a single contract and not severable.
8.1 We shall be entitled to reject any Goods delivered which are not in accordance with the Contract, and shall not be deemed to have accepted them until we have had a reasonable time to inspect them following delivery or, if later, within a reasonable time after any latent defect has become apparent.
9. RISK AND PROPERTY
9.1 Risk of damage to or loss of the Goods shall pass to us on delivery in accordance with the Contract. Unless stated otherwise in the Contract transit and offloading of the Goods shall be at your risk.
9.2 Property in the Goods shall pass to us on delivery, or if earlier, when payment for the Goods is made.
10.1 The Seller shall comply with all applicable regulations (including the General Product Safety Regulations 1994) and other legal requirements concerning the manufacture, packaging, labeling, packing and delivery of the Goods and performance of the Services and concerning hazardous substances.
11.1 You warrant to us that you are fully qualified, financed and organised to perform the Contract and that the Goods:-
11.1.1 will be of satisfactory quality and fit for any purpose held out by you or made known to you;
11.1.2 will be free from defects in design, material and workmanship;
11.1.3 will correspond with any relevant specification or sample; and
11.1.4 will comply with all statutory requirements, regulations and EU regulations relating to the manufacture and sale of the Goods, product safety, packaging, labeling and hazardous substances (including the appropriate British Standard or equivalent specification unless otherwise agreed).
11.2 You warrant to us that the Services:-
11.2.1 will be performed by appropriately trained and qualified personnel, with due care and diligence; and
11.2.2 will comply with all statutory requirements, regulations and EU regulations relating to the performance of the Services.
12. CERTAIN RIGHTS AND REMEDIES ON DEFAULT
12.1 Each of our rights or remedies is without prejudice to any other right or remedy.
12.2 If Goods are not delivered or Services are not performed on the due date then we shall be entitled to:-
12.2.1 deduct from the price or (if we have paid the price) to claim from you by way of liquidated damages for delay 0.5% of the price for every week’s delay up to a maximum of 10%;
12.2.2 cancel the Order (or any part) without liability and purchase substitute items or services elsewhere and recover from you any loss or additional costs incurred.
12.3 If any Goods or Services are not supplied or performed in accordance with the Contract, then we shall be entitled:-
1.3.1 to require you to repair the Goods or to supply replacement Goods or Services in accordance with the Contract within seven days; or
1.3.2 to repair or replace the Goods ourselves and charge you with the cost of this rectification or replacement; or
1.3.3 whether or not we have previously required you to repair the Goods or to supply replacement Goods or Services, to treat the Contract as discharged by your breach and require the repayment of any part of the price already paid.
12.4 Goods returned to you for rectification shall be forwarded at your risk and expense.
You shall indemnify us in full against all liabilities, losses (whether direct or indirect and including loss of profits and expenses (including legal expenses)) awarded against or incurred by us as a result of or in connection with:-
13.1 breach of any warranty relating to the Goods or the Services;
13.2 any claim that the Goods infringe the intellectual property rights of any person, except to the extent that the claim arises from compliance with our specification;
13.3 any claim made against us in respect of any breach or alleged breach by us of any statutory provision, regulation or other rule of law arising from your acts or omissions or those of your employees, agents or subcontractors;
13.4 any liability under the Consumer Protection Act 1987, the General Product Safety Regulations 1994 and under regulations relating to hazardous substances or under the Environmental Protection Act 1990 in respect of the Goods and/or the Services; and
13.5 any act or omission of you or your employees, agents or sub-contractors in supplying, delivering and installing the Goods and in performing the Services, including any injury, loss or damage to persons caused or contributed to by the negligence of you, your employees, agents or subcontractors or by faulty design, workmanship or materials.
14. FORCE MAJEURE
Neither you nor us shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of our respective obligations if the delay or failure was beyond our reasonable control.
15. SPARE PARTS
You shall ensure that all spare and/or replacement parts, components and materials for the Goods shall be available from you for 10 years from date of first use by us of the Goods in question, unless you provide us with all drawings, plans, specifications and other technical data as we reasonably believe are necessary to enable us to manufacture such parts or the Goods.
16.1 We shall be entitled to cancel Orders in respect of all or part only of the Goods and/or the Services by giving notice at any time prior to delivery or performance without incurring any liability to you other than to pay for Goods and/or Services already delivered or performed at the time of such notice.
16.2 We shall be entitled to terminate the Contract without liability to you and reserving all rights by giving notice to you at any time if:-
16.2.1 you are in material breach of any of your obligations and that breach cannot be remedied;
16.2.2 you are in material breach of any of your obligations and that breach can be remedied but you fail to do so within 30 days starting on the day after receipt of notice from us;
16.2.3 you commit more than one breach of any of your obligations and the cumulative effect of such breaches is that we reasonably believe that you will continue to deliver a substandard performance over the one month period immediately after the service of notice specified in Condition 16.2.2;
16.2.4 you make any voluntary arrangement with your creditors or become subject to an administration order or go into liquidation or bankruptcy or an encumbrancer takes possession or a receiver is appointed, of any of your property or assets; or
16.2.5 we reasonably believe that any of the events mentioned above is about to occur and we notify you accordingly.
16.3 If delivery is incomplete then we may accept or reject the Goods or Services delivered or performed and cancel or vary the balance of the Order.
All information supplied to you at any time is and remains our property and must be returned on request and shall be regarded as confidential.
18.1 Orders are personal to you and you shall not transfer, assign, charge, dispose of or deal in any manner or purport to do the same with any of your rights or beneficial interests.
18.2 You shall not sub-contract any of your obligations under the Contract.
18.3 Any waiver by us of any breach is not a waiver of any subsequent breach.
18.4 Failure or delay by us in enforcing or partially enforcing any provision of the Contract is not a waiver of any of our rights.
18.5 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 remainder shall not be affected.
18.6 You shall at all times maintain adequate insurance cover with a reputable insurer against your liability under the Contract and produce the policy and latest premium receipt to us on demand.
18.7 The Contract shall be subject to English law and to the exclusive jurisdiction of the English courts.
18.8 The Contract does not create, confer or purport to confer any benefit or right enforceable by any person not a party to it by virtue of the Contracts (Rights of Third Parties) Act 1999.