Terms and Conditions
Terms and Conditions of Purchase
In these conditions ‘Buyer’ means Sherborne Sensors Limited. ‘Seller’ means the person or entity with whom the purchase order is placed. ‘Goods’ shall mean all deliverable goods, items, parts, products, materials or services described in the Purchase Order.
2. Orders Authorisation and Conditions of Order
The Buyer shall not be liable in respect of any orders other than those issued or confirmed in its official purchase order documents. The conditions set out herein shall be the conditions of the contract. No written or printed terms inconsistent herewith or additional hereto shall be binding upon the Buyer unless expressly accepted in writing by one of its authorised officials and, unless so accepted in writing, delivery of the Goods shall be deemed to be an unconditional acceptance of the order. The Seller’s terms and conditions will not apply to any purchase order placed by the Buyer unless confirmed to the Seller in writing prior to the delivery of the goods.
3. Specifications and markings
(a) The Goods must be supplied exactly in accordance with this order and any specification, drawing, process instruction or procedure defined therein. No variation from the requirements shall be permitted without the Buyer’s written authority.
(b) No marking not authorised by the Buyer shall appear on any part of the Goods, except, for standard products of the Seller, the manufacturer’s name, address and reference number, the date of manufacture, safety information and any other information relating to the function of the Goods usually incorporated by the manufacturer.
The price payable for the Goods will be the price set out in the order. Unless otherwise expressly agreed, the contract price will be a fixed price and will include the cost and risk of delivery to the Buyer’s premises.
5. Payment Terms
(a) Unless otherwise agreed payment of the price will be made 30 days following the end of the month of delivery. The invoice must be forwarded to the Financial Accounts Department of the Buyer at the postal address on the order, unless otherwise stated.
(b) The Buyer may withhold payment of any amount due to the Seller if the Buyer asserts any credit, set-off or counterclaim against the Seller.
6. Buyer Property
(a) All materials, patterns, dies, jigs, fixtures and tooling together with any specifications, drawings, process sheets and the like or any other property or intellectual property whatsoever supplied to the Seller by the Buyer or to the Buyer’s order, or procured or developed by the Seller specifically for the supply of Goods to the Buyer, shall be and remain the property of the Buyer and must not, without the Buyer’s written consent, be used for or in connection with the production of any Goods whatsoever other than the Goods ordered by the Buyer. The Seller shall ensure that such items are always identified as the property of the Buyer and must be returned to the Buyer immediately on demand.
(b) Insurance: All the Buyer’s property including that mentioned in condition 6(a) hereof together with materials and components provided free of charge by the Buyer in connection with this order must be insured by the Seller to its full replacement value against all risks until it has been received back by the Buyer or used or forwarded in accordance with its instructions.
7. Patent Rights etc.
If the supply or use of any Goods under this order, (other than any such Goods or things manufactured by the Seller in accordance with designs supplied by the Buyer), shall be held to constitute an infringement or an alleged infringement of any third party patent, copyright, registered design or trademark, the Buyer or any person at any time in possession of such Goods shall be indemnified by the Seller against all damages, costs, losses, charges or expenses incurred as a result of such infringement or alleged infringement and the Seller will further, if required by the Buyer, conduct any legal proceedings which may be necessary to protect the Buyer at the Seller’s risk and expense.
The Seller shall indemnify and hold harmless the Buyer from any loss, damage and expense, including all legal fees, incurred or sustained by the Buyer, which is caused by or arises as a result of any defects in the Goods or by reason of the negligence of the Seller or the failure of the Seller to conform to the terms of this order or applicable statutory duty or regulation. The Seller shall have in place general liability insurance and employer’s liability insurance for amounts acceptable to the Buyer, and shall provide evidence of such insurance on request.
All orders placed by the Buyer are strictly confidential. The Seller must not publish or cause to be published by any means whatsoever any details concerning the Goods, which are the subject of this order without the Buyer’s previous consent in writing.
(a) All information of the Buyer or its customers which is or may be disclosed to the Seller in the course of carrying out this order shall be treated by the Seller as strictly confidential and shall not without the prior written consent of the Buyer be disclosed to any third party or parties nor be used or copied for any purpose(s) other than for the execution of this order. The provisions of this condition do not apply to information which is or comes into the public domain otherwise than through a breach of this condition.
(b) If this order requires or permits the entry by the Seller or its permitted or approved subcontractor onto the Buyer’s premises it is a condition of this order that the Seller and any sub-contractor and their employees shall treat as strictly confidential any technical or commercial know-how processes, specifications or other information which shall come into its knowledge in the course of such entry and any such technical or manufacturing knowhow processes, specifications and other information shall not be disclosed to any third party without the Buyer’s previous consent in writing. The Seller shall obtain from any such subcontractor an undertaking in the terms of this condition.
11. Sub-Contracting, etc.
(a) The Seller shall not without the Buyer’s consent in writing assign or sub-contract this order or any part thereof other than for materials or for any part of the Goods of which the makers are named in the order or specification. Any such consent shall not relieve the Seller of any of his obligations under the contract.
(b) No third party shall have the right to enforce any provision of this contract.
12. Time for Delivery and Extensions
(a) Time shall be of the essence of this contract. The Goods shall be delivered at the time specified in the order. Goods may not be delivered more than 3 days early. If as a result of any event outside the Seller’s control the Seller is unable to deliver the Goods within the specified time then provided that the Seller shall have given notice in writing without delay of such event and his intention to claim an extension of time, the Buyer may grant the Seller such extension as the Buyer may consider reasonable. In the event of significant delay the Buyer reserves the right to terminate this order, in whole or in part, without incurring any liability to the Seller.
(b) In the event of the Buyer’s normal course of manufacture being interrupted, restricted, hindered or delayed by any cause whatsoever beyond its control or by any exceptional causes whatsoever, it may without additional cost defer the date or dates of delivery.
(c) If the Goods or any part thereof are not delivered within the time or times specified in the order or any agreed deferment or extension of such time or times the Buyer shall be entitled to the following remedies:
i) To recover from the Seller liquidated damages as follows: one half of one per cent (0.5%) per week for the first four weeks and one per cent (1.0%) per week thereafter of that part of the contract price which is properly attributable to the undelivered Goods and to any other Goods already delivered under the contract which cannot be effectively and commercially used by reason of the non-delivery of the said undelivered Goods. The rate shall be applied for each week or part of a week during which the order shall remain uncompleted. The Buyer shall be entitled to deduct such damages from any moneys payable by it under the terms of this order or otherwise. The total amount payable by way of damages under this condition shall in no event exceed fifteen per cent (15%) of the said contract price and such damages shall not relieve the Seller from any of its other obligations or liabilities under the contract; and/or
(ii) Cancel the order in whole or in part without incurring any liability to the Seller; and/or
(iii) Refuse to accept any subsequent delivery of Goods; and/or purchase substitute items elsewhere; and/or hold the Seller accountable for any loss and additional costs incurred.
(a) The Goods are to be delivered, carriage paid to the destination stated in the order. They must be delivered in good order and condition and quantities must not exceed those ordered or specified.
(b) Unless specifically ordered, no cases, wrappers nor packaging of any kind will be paid for. Should any cases, wrappers or packaging be ordered, charges therefore are to be shown on a separate invoice and such cases may be returned to the Seller who forthwith on receipt thereof in good order shall refund such charges.
(c) Subject to any special instructions from the Buyer, an advice note shall accompany every delivery, which shall state: the purchase order number, quantity of the delivery, the quantity already delivered under the order, and the balance of the order still to be delivered.
14. Quality Assurance
(d) The quality assurance requirements of Goods shall comply with the Seller’s quality procedures as authorised by the Buyer, and with the Buyer’s applicable quality procedures.
(e) Goods delivered shall, as applicable, meet the requirements for release documentation as stated on the face of the Buyer’s order. A Certificate of Conformity may be required as stated on the purchase order.
(f) The Seller shall promptly notify the Buyer of changes in product and/or process and/or change of manufacturing facility/location and obtain the Buyers approval. These requirements shall flow down to sub-tier suppliers within the supply chain.
15. Inspection and Access
Authorised Buyer representatives, customers of the Buyer and other authorities shall be allowed access to the Supplier’s premises at mutually agreed times to carry out inspection of the Supplier’s quality system and Goods verification when necessary.
(a) It is a condition that the Seller must replace promptly free of charge or pay the cost of local replacement of any Goods or parts thereof which may prove defective through faulty design, (other than a design made or furnished by the Buyer), material or workmanship within 12 months from the date of delivery.
(b) If any Goods supplied under this order for further processing before use shall prove to be defective whilst in the course of such processing the Seller will be liable to the Buyer for the cost of any labour expended in connection with such processing in addition to any legal rights which the Buyer may have in respect of such defective Goods.
(c) In the event that the Seller produces non-conforming product and cannot replace it within the agreed time scale, then the Seller shall promptly advise the Buyer. The Buyer and Seller shall agree a recovery plan that includes specifying how the non-conforming product is to be disposed of.
17. On-site Equipment
The Buyer shall not be responsible for or accept any liability in respect of damage or claims resulting from the use by or on behalf of the Seller or Buyer’s on-site equipment. The Buyer’s on-site equipment should be used only with its prior authority and in strict compliance with its site procedures and the Seller shall indemnify the Buyer against any failure to do so.
18. Termination on Notice
The Buyer shall be entitled at any time by 14 days notice in writing to terminate the contract and on such termination:
(a) The Seller shall use all reasonable endeavours to assign to the Buyer on request the benefit of any sub-contract entered into by the Seller in connection with the Goods the subject of this order or to terminate any such sub-contract.
(b) The Seller shall be entitled to be paid:
(i) The sums under the terms of this order in respect of work done and Goods delivered up to the date of termination.
(ii) Any sums which, consistent with applicable lead times, have necessarily and reasonably been paid by the Seller to its suppliers or contractors to carry out the Seller’s obligations.
(iii) The Seller will not be entitled to any payment other than under (i) and (ii) above.
19. Termination for Cause
The Buyer shall be entitled without liability to the Seller to terminate the contract immediately:
(a) If the Seller fails to perform any condition or requirement of this contract and, if capable of remedy, fails to remedy such breach within 14 days of written notice; or
(b) The Seller makes any arrangement with its creditors or enters into administration or goes into liquidation; or
(c) A receiver or manager is appointed of any of the property or assets of the Seller; or
(d) The Seller ceases or threatens to cease to carry on business; or
(e) Any distress, execution or other process is levied on any of the assets of the Seller.
20. Safety and Environmental Regulation
The Seller shall comply in all respects with the applicable environmental and health and safety laws and regulations and shall indemnify and hold harmless the Buyer from and against all damages costs, losses, charges, expenses or liabilities whatsoever caused by or arising out of any breach by the Seller of such laws or regulations.
21. Hazardous Materials
The Seller must advise upon receipt of this order if the Goods to be supplied contain any hazardous or harmful materials requiring special handling or treatment. The Seller shall comply with all applicable requirements contained in laws, regulations and directives including but not limited to national, EU, and local environmental, health and safety laws, regulations and directives relating to the supply of Goods and Hazardous Materials. All Goods and Hazardous Materials shall comply with the requirements set forth in the Montreal Protocol on ozone depleting substances. Upon delivery of Goods to the Buyer, the Seller shall notify the Buyer in writing of all Substances of Very High Concern (SVHC) as identified on the “Candidate List” as published by the European Chemicals Agency (“ECHA”) in accordance with Article 59.1 of the European Regulation (EC) no 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH”) as amended from time to time. Unless supplier notifies the Buyer in writing and obtains the Buyer’s prior written consent, no Goods shall contain any of the Hazardous Materials pursuant to Article 2.1 and identified in Article 4.1 of the European Parliament Directive 2002/95/EC (RoHS Directive) as that directive is amended from time to time. Supplier shall be responsible for all costs and liabilities’ relating to the recycling of Goods pursuant to the most current version of the European Parliament Directive 2002/96 /EC (WEEE Directive) as such Directive is implemented in each country to which said Goods are supplied to the Buyer.
Where appropriate the Seller shall provide documentation including operating instructions, parts lists and comprehensive spares listings. All documentation supplied shall be in the English language.
23. Compliance with Laws
(a) The Seller shall comply in all respects with all applicable laws and regulations affecting the Goods and shall indemnify the Buyer against all damages, costs, losses, charges, expenses or liabilities whatsoever caused by or arising out of any breach by the Seller of such legislation or regulation.
(b) The Seller shall comply with all of the Buyer’s mandatory customer terms that it is required to flow down to its suppliers.
24. Export Compliance
The Seller shall obtain all export licences necessary for the delivery of the Goods to the Buyer at the time specified in the order. The parties agree to comply with all applicable governmental regulations as they relate to the import, export and re-export of information and/or Goods under this contract. The Seller shall provide to the Buyer all the necessary information required for export classification of the Goods. The Seller shall indemnify and hold the Buyer harmless to the full extent of any loss, damage or expense, excluding lost profits, for any failure of the Seller to comply with such laws and regulations.
The Seller warrants that it has not, in connection with the Goods or Services:
(a) Offered, given or agreed to give or receive, requested or accepted any financial or other advantage of any kind as an inducement or reward for doing or not doing any improper actor for the improper performance of any function associated with the order or the Goods or Services; or
(b) Acted in any way, which would constitute an offence by the Seller or would cause the Buyer to commit an offence under any anti-bribery legislation. If the Seller breaches the above warranty, the Buyer shall be entitled to terminate the order by written notice with immediate effect. Any termination shall be without prejudice to the accrued rights of the Buyer. The Seller shall indemnify and hold harmless the Buyer from any loss, damage and expense, including all legal fees, incurred or sustained by the Buyer, which is caused by or arises as a result of a breach of this clause.
26. Counterfeit Work
(a) Work consists of those parts delivered under a purchase order that are the lowest level of separately identifiable items (e.g., articles, components, goods, and assemblies). "Counterfeit Work" means Work that is or contains items misrepresented as having been designed and/or produced under an approved system or other acceptable method. The term also includes approved Work that has reached a design life limit or has been damaged beyond possible repair, but is altered and misrepresented as acceptable.
(b) The Seller agrees and shall ensure that Counterfeit Work is not delivered to the Buyer.
(c) The Seller shall only purchase products to be delivered or incorporated as Work to the Buyer directly from the Original Component Manufacturer (OCM)/Original Equipment Manufacturer (OEM), or through an OCM/OEM authorized distributor chain. Work shall not be acquired from independent distributors or brokers unless approved in advance in writing by the Buyer.
(d) The Seller shall immediately notify the Buyer with the pertinent facts if the Seller becomes aware or suspects that it has furnished Counterfeit Work. When requested by the Buyer, the Seller shall provide documentation that authenticates traceability of the affected items to the applicable original manufacturer.
(e) In the event that Work delivered under the purchase order constitutes or includes Counterfeit Work, the Seller shall, at its expense, promptly replace such Counterfeit Work with genuine Work conforming to the requirements of this Order. Notwithstanding any other provision in the purchase order, the Seller shall be liable for all costs relating to the removal and replacement of Counterfeit Work, including without limitation the Buyer’s costs of removing Counterfeit Work, of reinserting replacement Work and of any testing necessitated by the reinstallation of Work after Counterfeit Work has been exchanged. The remedies contained in this paragraph are in addition to any remedies the Buyer may have at law.
(f) This clause applies in addition to any quality provision, specification, statement of work or other provision included in the purchase order addressing the authenticity of Work. To the extent such provisions conflict with this clause, this clause prevails.
(g) The Seller shall include paragraphs (a) through (d) of this clause or equivalent provisions in lower tier subcontracts for the delivery of items that will be included in or furnished as Work to the Buyer.
27. Governing Law
This agreement shall be governed by and construed in accordance with English law and each party agrees to submit to the exclusive jurisdiction of the courts of England and Wales.
a) Sherborne Sensors Limited (“the Company”) warrants its products to be free from defects in workmanship and materials, under normal use and service, for the applicable warranty term. All standard products manufactured by the Company listed on the Company’s website carry a standard 24-month limited warranty from the date of their first shipment from the Company, its Distributor or its authorized reseller. All other products manufactured by Sherborne Sensors carry a 12-month warranty from the date of their first shipment from the Company, its Distributor or its authorized reseller. The Company may, at its own discretion, repair or replace any product not operating as warranted with a similar or functionally equivalent product, during the applicable warranty term. Products not manufactured by the Company will carry the warranty issued by the original manufacturer.
b) The Limited warranty covers a product during the Life of that Product, which is defined as the period during which the product is a current Company product. A product is considered current whilst it is listed on the Company’s website at the time the product was shipped. As new technologies emerge, older technologies become obsolete and the Company will, at its discretion, replace an older product in its product line with one that incorporates these newer technologies. At that point, the obsolete product is discontinued and is no longer a current Company product. The Company will provide warranty service for one year following the product’s discontinuance.
c) The Company shall not be liable under this warranty if its testing and examination disclose the alleged defect in the product does not exist or was caused by the buyer’s or any third person’s misuse, neglect, improper installation or testing, unauthorized attempts to repair, or any other cause beyond the range of the intended use, or by accident, fire, lightning, or other hazard. The Company reserves the right to charge reasonable fees for examining and testing products for which no fault can be found.
d) All products that are replaced become the property of the Company. Replacement products may be either new or reconditioned. Any replaced or repaired products carry either a 30-day limited warranty or the remainder of the initial warranty, whichever is longer. Products returned to the Company should have any buyer-installed accessories or add-on components removed prior to returning the product for replacement. The Company is not responsible for these items if they are returned with the product.
e) The Buyer must contact the Company for a Return Material Authorization (RMA) number prior to returning any product to the Company. Proof of purchase may be required. All warranty claims must be made in writing to the Company during the applicable warranty period and the product(s) claimed defective must be returned by Buyer to the Company at the Company’s plant. All product(s) returned for warranty must be accompanied by an explanation of product failure.
f) The Buyer is responsible for all shipping charges from their facility to the Company. The Company is responsible for return shipping charges from the Company to the Buyer.
g) If the product does not operate as warranted above, the Buyer's sole remedy shall be the repair or replacement of the product in question, at the Company’s option. The foregoing warranties and remedies are exclusive and are in lieu of all other warranties or conditions, express or implied, either in fact or by operation of law, statutory or otherwise, including warranties or conditions of merchantability and fitness for a particular purpose. The Company neither assumes nor authorizes any other person to assume for it any other liability in connection with the sale, installation, maintenance or use of its products.
h) In no event, whether based in contract or tort (including negligence), shall the Company be liable for incidental, consequential, indirect, special, or punitive damages of any kind, or for loss of revenue, loss of business, or other financial loss arising out of or in connection with the sale, installation, maintenance, use, performance, failure, or interruption of its products, even if the Company or its authorized reseller has been advised of the possibility of such damages.
i) Nothing in these warranty conditions shall be taken to affect any applicable statutory rights.
j) For out-of-warranty product returned for repair or calibration, the warranty is ninety (90) days from the date of return shipment from the Company.
k) Notwithstanding anything else herein, the Company shall not be liable under this agreement or otherwise in connection with any product, under any legal or equitable theory, whether in contract, tort or otherwise (including negligence or strict liability):
- For any amount exceeding the amount paid by Buyer to the Company for the specific product (item) giving rise to such liability;
- Any lost profits or lost opportunity whether characterized as direct damages or otherwise.
l) Certain jurisdictions limit or do not allow the exclusion or limitation of warranties or liability. Therefore certain sections above may not in whole or in part apply to Buyer. To the extent that any limitation or exclusion of liability or warranty shall apply, it shall be limited to the least extent possible under applicable law.
Limitation of Liability
In no event, whether based in contract or tort (including negligence), shall the Company be liable for incidental, consequential, indirect, special, or punitive damages of any kind, or for loss of revenue, loss of business, or other financial loss arising out of or in connection with the sale, installation, maintenance, use, performance, failure, or interruption of its products, even if the Company or its authorised reseller has been advised of the possibility of such damages.
Nothing in these warranty conditions shall be taken to affect any applicable statutory rights.
Service Support for Product out of Warranty
In the event that a Company product requires service outside of the warranty period it should be returned using the RMA procedure. The company will examine and test the product to determine the fault and the required remedy. A quotation will be supplied for the necessary repair. In the event that the cost of repair exceeds 60% of the cost of new the product will be deemed "beyond economic repair" and a quotation supplied to replace the defective product with a replacement. The Company will support the products throughout their design life in respect of repair, maintenance and replacement of the specified product. This period will be no less than 5 years from the date of the first delivery of product.
Return Material Authorisation (RMA)
Telephone Request – A technical support engineer will endeavour to diagnose the problem and, if it is determined that a product failure has occurred, will issue a RMA for the products return.
Fax or E-mail Request – A technical support engineer will endeavour to respond within 4 - 8 business hours of receiving the request. During peak hours, response times may be longer.
In order to process a warranty, repair or service request expeditiously we require the following information:
Company Name & Address
Contact Name, Telephone & Fax Number or email address
Product, Part & Serial Number of units in need of repair
Late Delivery Compensation
Sherborne Sensors undertake to ship the goods on or before the date stipulated in their Order Acknowledgement to the Purchaser.
In case Sherborne Sensors fails to make shipment of the Goods on the date stipulated in the Order Acknowledgement, (with exception of Force Majeure specified below), and unless the Purchaser agrees to postpone the shipment, the Purchaser may claim credit in respect of late shipment.
The credit value for LATE SHIPMENT CHARGES is calculated at the rate of 1.0% of the Order line value for every seven (7) calendar days late, odd days less than seven being counted as seven days. In case Sherborne Sensors fails to make shipments five (5) weeks after the delivery time specified in the Contract, the Purchaser shall have the right to terminate the Order or Contract. Late shipment credit shall not exceed 5% of the Order value, excluding carriage costs and apply only to the products that are shipped late and not the total order value.
Whilst the Company intends to use all reasonable endeavours to perform, if by reason of any cause of any kind whatsoever beyond the Company's control or which it could not with reasonable diligence have avoided, the completion of the contract or delivery of the goods is in the Company's opinion rendered impracticable the Company may terminate, cancel, rescind or suspend the contract by delivering to the Purchaser a notice in writing to the effect and the Company shall not be liable for any resulting loss or damage to the Purchaser. Any dispute between the parties as to the interpretation of this clause shall be settled by an expert to be appointed by agreement between the parties or, in default of agreement, by the President for the time being of the Law Society, and such person shall act as expert and not as arbitrator and his decision shall be binding on the parties.
Terms and Conditions of Sale
Where the Purchaser Under the Contract (Not Being a Contract for the International Sale of Goods) Deals As a Consumer Within Section 12 of the Unfair Contract Terms Act 1977 then Nothing Contained in Any of the Following Conditions Shall Restrict or Affect the Statutory Rights of the Purchaser.
1) Formation and Interpretation of Contracts.
- All contracts of Sale made by Sherborne Sensors Limited (hereinafter called 'the Company') shall be governed exclusively by the terms and conditions set out below (hereinafter called the 'Contract Terms'). The Contract Terms shall override and take place of all previous oral and written representations and other terms and conditions in any document or other communication used by the Purchaser in concluding the contract with the Company whether or not the same are endorsed upon, delivered with, or referred to in any purchase order or other document delivered by the Purchaser to the Company.
- The Contract Terms may be varied only by express agreement by the Company by means of a written amendment signed by a Director of the Company or the Company Secretary and referring specifically to the terms and conditions to be amended.
- The application of the Uniform Laws on International Sales shall be excluded. The construction validity and performance of all contracts shall be governed by English law.
- The complete or partial invalidity or unenforceability of any provision herein for any purpose shall in no way affect the validity or enforceability of such provision for any other purpose or the remaining provisions. Any such provision shall be deemed to be severed for that purpose subject to such consequential modification as may be necessary for the purpose of such severance.
- The headings used herein are for convenience only and shall not affect construction; and 'Liabilities in relation to "means' all liabilities, losses, damages, costs (including without limitation legal costs on a fully indemnity basis and VAT), expenses, actions, claims, proceedings and demands whatsoever arising directly or indirectly out of or in connection with.'
Prices. Unless otherwise expressly stated in writing by the Company orders are accepted on the basis that –
- the price stated is the net price of the goods (after deduction of any discounts) for delivery in accordance with the contract and overrides all previous oral and written representations.
- the price is exclusive of value added tax and any other impositions whatsoever, which if applicable shall be paid by the Purchaser in addition; and
- the company may without prior notice adjust the price stated to take account of any change in specification made at the Purchaser's request or any change before the date of delivery in the cost to the Company of labour, materials, sub-contracted services, transport, foreign currency or import or export duties or tariffs which directly affect the cost to the Company of supplying the goods.
- Unless otherwise expressly stated in writing, prices are due and payable to, and at such address or bank account as may be designated by the Company, without set off or counterclaim, in United Kingdom sterling in immediately available funds thirty days from the date of delivery, or thirty days from when each invoice relating to a contracted stage payment is sent to the purchaser. Payment by cheque or other negotiable instrument is ineffective until it is honoured and the Company's bank account is credited with the amount due. Time of payment is of the essence of every contract. On failing to make full and prompt payment, the Purchaser shall (without prejudice to any other rights of the Company) become liable to pay to the Company interest on the amount due at three percent per annum above the base rate from time to time of Barclays Bank PLC calculated from the date of due payment until the date of actual payment before and after (and as a separate continuing obligation not merging with) any judgement.
- Any carriage, packing and other charges stated separately from the price are payable by the Purchaser at the same time, and shall be treated as part of the price.
- If the Purchaser pays an amount to the Company without apportioning it between specific debts or liabilities it shall be apportioned as the Company thinks fit. The Company may attribute a partial payment to one or more specific items, rather than to all the items which are the subject of a particular contract.
Dispatch and Delivery
- The Company will endeavour to complete the contract or deliver the goods within the time agreed (if any) but it shall not be liable for any loss or damage whatsoever caused directly by any delay in the completion of the contract or delivery of the goods.
- Except insofar as the contract expressly provides otherwise, the Company may select the method, and charge the Purchaser for the cost of carriage. All export orders will unless otherwise stated be delivered Free on Board (F.O.B.) UK port which expression shall for the purposes of such orders have the meaning assigned to it by Incoterms 1980.
- Where the contract is stated to be f.o.b. or c.i.f. the risk in the goods shall pass to the Purchaser when the goods have effectively passed the ship's rail at the port of shipment or have been delivered into the charge of the air carrier or his agent as the case may be in all other cases, even if the price includes carriage, risk shall pass to the Purchaser upon transfer at the company's premises on to the carrier's or Purchaser's transport. If the goods are to be transported by the Company, risk shall pass to the Purchaser on delivery at the Purchaser's premises.
- In contracting for carriage and/or insurance of goods in transit, the Company shall be deemed to act solely as agent of the Purchaser and Section 32(2) and (3) of the Sale of Goods Act 1979 shall not apply.
- Where goods are to be delivered at the Company's premises the contract will state the expected date of delivery. In all other cases, before dispatching of any goods for delivery, the Company will send to the Purchaser an Advice Note stating the expected date of delivery. If the goods are damaged or short on delivery the Company shall in no event be liable unless the Purchaser notifies the Company and the carrier in writing within seven days of delivery in the case of inland orders, and twenty-eight days of delivery in the case of export orders, and gives the Company a reasonable opportunity to inspect the goods. No claim for non-delivery will be considered unless the Company is notified in writing within ten days of reasonable delivery time in the case of inland orders, and twenty-eight days of reasonable delivery time in the case of export orders, in both cases taking into account date of dispatch.
- The Purchaser may not reject any goods by reason of short delivery.
- The Purchaser shall on demand pay the Company for, and/or indemnity the Company against liabilities in relation to, any storage, handling, insurance or other services provided or used by the Company because the Purchaser or its carrier fails to accept delivery of the goods when tendered; and the Company shall have a lien over the goods in respect thereof.
- The Company may deliver the goods by instalments, each instalment to be deemed a separate contract. Without limiting the other provisions herein, no failure or defect in delivery in respect of any contract or instalment shall enable the Purchaser to repudiate or cancel any other contract or instalment.
- Unless otherwise agreed in writing there shall be no refund of any charge made for packing except in the case of non-expendable pallets or containers which are charged for and for which credit shall be given on return.
- The Company reserves the right to make additional charge for storage and administration costs incurred by it in respect of the goods stored or held by the Company because of a lack of or inadequate delivery instructions.
Notwithstanding delivery of the goods or any document representing them, the Company reserves the right of disposal of each item of the goods, and the property therein shall not pass to the Purchaser until:
- receipt by the Company of payment in full for such item plus any default interest thereon; or if earlier
- sale by the Purchaser of such item to an independent third party on arm's length terms in the ordinary course of business (which sale shall be by the Purchaser as principal and not as agent for the Company.)
Pending the passing of Property, the Purchaser shall be bailee of the goods and
- shall not dispose of, charge or encumber the goods, or any interest therein or purport to do so, other than under (a) (ii) above and
- shall deal and be deemed to deal with the goods and other goods of the same type supplied by the Company and the order in which they are delivered, shall retain possession of the goods; and shall store them separately or mark them so that they may be readily identified as the Company's property; and
- hereby grants the Company an irrevocable license to enter upon any of the premises of the Purchaser for the purpose of repossessing goods in any sum due in respect of them is outstanding or if the Company reasonably believes that any such sum will not be paid in full when if fails due for payment.
- Notwithstanding delivery of the goods or any document representing them, the Company reserves the right of disposal of each item of the goods, and the property therein shall not pass to the Purchaser until:
Specifications, Descriptions, Drawings and Intellectual Property.
- Where the Purchaser specifies in writing goods of a particular design, performance or manufacture, such specification shall be complied with by the Company where the Company has accepted it in writing in other cases the Company may vary the goods provided that the variations are not material, or that any material variations have been agreed in negotiations with the Purchaser, and such variations shall not constitute a breach of contract or impose on the Company any liability whatsoever.
- All drawings, models and similar items prepared by the Company and the copyright therein shall remain the property of the Company and shall be returned by the Purchaser on demand. All know-how, samples, models, designs and drawings relating to the goods or their development or creation shall remain the Company's property, shall be treated as confidential and shall not be copied, reproduced or disclosed to any third party without the Company's prior written consent.
- No right or license is granted to the Purchaser under any patent, copyright, registered design or other intellectual property right except the right to use or resell the goods and any purported grant of Shop Rights to the Purchaser by the Company is hereby specifically excluded.
- If the goods are manufactured to the design or specification of the Purchaser, the Company shall not be liable for any infringement of any intellectual property rights caused by the goods or their use or sale by the Purchaser. The Purchaser shall forthwith notify the Company of any allegation of any such infringement. The Company may at its own expense conduct any negotiations or proceedings arising from such allegation; and the Purchaser shall assist therein.
- The Purchase shall not without the Company's prior written consent allow any trademarks of the Company or other words or marks applied to the goods to be obliterated, obscured or omitted or add any additional marks or words.
- The Company will, as far as it reasonably can, transfer or make over to the Purchaser the benefit of any guarantee or warranty which may have been given by the manufacturer in respect of any goods the subject of this Contract which are not made by the Company. In addition if during the Warranty Period (defined bel ow) any part manufactured by the Company is found upon inspection by the Company to have proved defective in material or workmanship under normal use and service and when properly installed and connected the Company will free of cost repair or if the Company so wishes replace such part provided the Company is informed of the defect as soon as possible after discovery thereof and should the Company so require the part is returned carriage paid. Any cost or expense incurred by any persons removing or refitting the part shall be borne by the Purchaser. The Company will not however be liable to repair or replace any part if any identification or serial number thereon has been altered, defaced or removed or if the part has not been properly maintained in accordance with the Company's recommended maintenance procedure or has been subjected to any misuse, unauthorised repair, replacement, modification or alteration.
- The Warranty Period applicable to any part shall be the period commencing from the date of its dispatch from the Company's factory and expiring twelve months from the date of its delivery.
- Where the Company recommends the use of the particular fluids, materials or other accessories with the Company's equipment the warranty set out above shall not apply to any Company part with which other fluids, materials and accessories have been used but no such recommendation shall make the Company in any way liable for any defect in such fluids, materials or accessories.
- The Purchaser agrees to indemnity and hold harmless the Company against any claims made against the Company in respect of products incorporating goods supplied by the Company where such claims relate to part or aspects of the products other than goods supplied by the Company.
Limitation and Exclusion of Liabilities
The Company's obligations and liabilities to the Purchaser in respect of the goods shall be limited to –
- those set out expressly herein
- those implied (as to title etc.) by s. 12 of the Sale of Goods Act 1979
- any liability for death, personal injury and loss of or damage to property under s.2 of the Consumer Protection Act 1987
- where the contract is not an international supply contract within s.26 (3) of the Unfair Contract Terms Act 1977, any liability for death or personal injury resulting from negligence (as defined in that Act). The Purchaser acknowledges that this is reasonable and reflected in the price and shall accept risk and/or insure accordingly.
- Subject to and without limiting (a) above, all warranties, representations and conditions and all liabilities and obligations whatsoever and howsoever arising, whether express, implied, statutory or otherwise are hereby expressly excluded.
Subject to and without limiting (a) and (b) above –
- the Company shall not be liable to the Purchaser for any loss, injury or damage of any nature whatsoever whether direct or consequential arising out of or in connection with any goods supplied:
- the Purchaser shall not reply upon any representation concerning any goods supplied unless the same shall have been made by the Company in writing and is not a printing and/or clerical error:
- the Purchaser and other persons dealing in the Company's goods has no right or authority to bind the Company in any way or to assume on the Company's behalf any obligation express or implied: and
- where goods have been manufactured to the Purchaser's design or according to his stipulations as to performance, the Purchaser agrees to indemnity and hold harmless the Company against any claims arising from the Company's compliance with the Purchaser's design or performance stipulations as the case may be.
- The Company's obligations and liabilities to the Purchaser in respect of the goods shall be limited to –
Use of goods by the Purchaser
- The Purchaser shall be solely responsible for and agrees to indemnity and hold harmless the Company against all Liabilities incurred by the Company in relation to any use of the goods other than in strict accordance with the Company's instructions and for the purpose and application for which the goods were supplied by the Company.
The Purchaser undertakes with the Company
- That he will acquaint himself with the requirements of all relevant Governments or statutory or other authorities, bodies or corporations relating to the goods and to the applications to which the goods are put.
- That at all times whilst the goods are in his possession or under his control he will comply with such requirements.
- That at all times whilst the goods are in his possession, or under his control he will comply with the instructions contained in any manual or documentation supplied with the goods, and it is an express term of the sale contract that the goods are used in accordance with the instruction manual.
- That he will procure that any purchaser of the goods from him will also acquaint itself with, and will comply with such requirements. That he will indemnify the Company against any liability resulting from a breach of any such requirements.
- Whilst the Company intends to use all reasonable endeavours to perform, if by reason of any cause of any kind whatsoever beyond the Company's control or which it could not with reasonable diligence have avoided, the completion of the contract or delivery of the goods is in the Company's opinion rendered impracticable the Company may terminate, cancel, rescind or suspend the contract by delivering to the Purchaser a notice in writing to the effect and the Company shall not be liable for any resulting loss or damage to the Purchaser. Any dispute between the parties as to the interpretation of this clause shall be settled by an expert to be appointed by agreement between the parties or, in default of agreement, by the President for the time being of the Law Society, and such person shall act as expert and not as arbitrator and his decision shall be binding on the parties.
- The Purchaser shall not assign, mortgage, charge, sub-let or otherwise dispose of any contract or any rights there-under in whole or in part without the Company's prior written consent. Any of the same purported to be effected without such consent shall be void.
- The Company shall be entitled to assign, sub-contract or sub-let this contract or any part thereof.
Events of Default, Termination, Repossession, Suspension
- If –
- the Purchaser fails to pay the price promptly or otherwise breaches any contract with the Company and the breach, if remediable and previously notified to the Purchaser, is not remedied within seven days:
- the Purchaser is, or for statutory purposes is deemed or appears to be, unable to pay its debts as they become due, or the value of its assets is less than the amount of its liabilities (including contingent and prospective liabilities), or the Purchaser otherwise becomes insolvent or suspends payment or threatens to do so:
steps are taken to
- propose any composition, scheme of arrangement, compromise or arrangement involving the Purchaser and its creditors generally;
- obtain an administration or appoint any administrative or other receiver or manager in relation to, or put in force any legal process against, the Purchaser or any of its property;
- enforce any charge or other security over the Purchaser's property;
- repossess any goods in the Purchaser's possession under any agreement; or
- wind up or dissolve the Purchaser:
- where the Purchaser is an individual or partnership, he or any partner dies or any steps are taken with a view to making a bankruptcy order against him or any partner; or
outside England and Wales, anything corresponding to any of the above occurs; then the Purchaser shall notify the Company forthwith and shall be deemed to have repudiated each contract with the Company, who may (at its discretion and without prejudice to its other rights hereunder or otherwise) by and/or following written notice to the Purchaser do any one or (to the extent not inconsistent with one another) more of the following –
- terminate, cancel and/or rescind the contract and any other contracts with the Purchaser:
- revoke any express or implied authority to sell, use or consume any goods the property in which has not passed to the Purchaser ('relevant goods'):
- require the Purchaser to deliver to the Company any relevant goods and the Purchaser shall do so, failing which the Company may repossess them and enter the premises where they are or are thought to be and sever them there-from, without liability for any resulting damage, and the Purchaser shall indemnify the Company against all liabilities in relation thereto:
- re-sell any relevant goods or transfer the property in them to the Purchaser;
- declare (whereupon there shall forthwith become) immediately due, payable and interest-bearing under Condition 3(b) above any amounts owed by the Purchaser to the Company under any contract;
- suspend any deliveries to be made under any contract with the Purchaser;
- proceed against the Purchaser for the price of the goods and/or damages;
- require the Purchaser to indemnify the Company against loss, damage or claim resulting from any purported cancellation or failure to take delivery, including the payment of license fees or other fees incurred by the Company in the course of its business together with the cost of any material, plant or tools used, or intended to be used, for the Purchaser's order(s), the cost of labour and other overheads, and redundancy payments primarily attributed to such purported cancellation.
- The Company's rights shall not be prejudices or restricted by any indulgence or forbearance extended to the Purchaser and no waiver by the Company in respect of any breach shall operate as a waiver in respect of any subsequent breach.