Terms & Conditions for the Supply of Goods and Services
1. INTERPRETATION AND BASICS OF CONTRACT
i. The following definitions and rules of interpretation apply in these Conditions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Buyer: the person or firm who purchases the Goods and/or Services from the Seller.
Conditions: the terms and conditions set out in this document.
Contract: the contract between the Seller and the Buyer for the sale and purchase of the Goods and/or Services in accordance with these Conditions.
Force Majeure Event: has the meaning given to it in clause 5(iii).
Goods: the goods (or any part of them) set out in the Order.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Buyer's order for the supply of Goods and/or Services, as set out in the Buyer's purchase order form, or the Buyer's written acceptance of the Seller's quotation, or any other request for Goods and/or Services, as the case may be.
Order Acknowledgement: has the meaning given in clause 1(ii).
Seller: Sircal Instruments (UK) Ltd registered in England with company number 1592093.
Services: the services to be supplied by the Seller to the Buyer as set out in the Order.
Specification: the description or specification for the Goods and/or Services provided in writing by the Seller to the Buyer (if any).
ii. Orders constitute offers by the Buyer to purchase Goods and/or in accordance with these Conditions. Orders shall only be deemed to be accepted when the Seller issues written acceptance of the Order ("Order Acknowledgement") at which point and on which date the Contract shall come into existence. All Orders are accepted on the strict understanding that these Conditions apply. These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. Subject as herein provided no amendment to or waiver of these Conditions shall be effective unless it is agreed by the Seller in writing.
iii. No agent or other person is authorised to vary these conditions or to give any warranty or to make any representation or to incur any liability on the Seller’s behalf.
iv. Acceptance of any Order will only be given by the Seller when the Buyer has given his formal written Order and clarified all technical and commercial details and when any required deposit payment has been received by the Seller.
v. Once the Seller issues its Written Acknowledgement of an Order, that Order shall not be cancelled by the Buyer except with the written consent of the Seller and on payment of a cancellation charge (determined by the Seller) in respect of the Seller’s loss.
2. TECHNICAL INFORMATION AND INTELLECTUAL PROPERTY
i. All technical information whether supplied by the Seller relating to the Goods and/or Services, the subject of the Order, particularly drawings, weights and dimensions, are approximate unless confirmed otherwise.
ii. Performance figures given by the Seller whether before or at the time of quotation or subsequently are approximate only.
iii. All Intellectual Property Rights arising out of or in connection with the Goods and/or Services and subsisting in the drawings, quotations, illustrations, descriptions, leaflets, software, samples or models relating to the Goods and/or Services (including, without limitation, any Specification, but excluding any materials provided by the Buyer) ("Contract Materials") shall be owned by the Seller. The Buyer shall not pass the Contract Materials on to any third party, nor copy, imitate or use for the manufacture the Contract Materials or similar materials and shall return all such Contract Materials to the Seller upon demand by the Seller or upon termination of the Contract. The Buyer undertakes not to disclose to any third party any other technical information supplied by the Seller in connection with the Goods and/or Services except with the express permission of the Seller.
iv. The Buyer warrants that the supply of the Goods and/or Services to its order, specification and/or design will not involve the Seller in the infringement of any third party's Intellectual Property Rights and the Buyer shall indemnify the Seller against all claims, losses and expenses incurred by the Seller by reason of any such infringement or alleged infringement.
v. The Buyer grants the Seller a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Buyer to the Seller for the term of the Contract for the purpose of providing the Services and/or Goods to the Buyer.
3. TERMS OF PAYMENT
i. Unless otherwise expressly agreed in writing, the Buyer shall pay all invoices not later than 30 days from date of invoice and the Seller shall be entitled to issue its invoice on delivery of the Goods or supply of the Services (as the case may be). When deliveries are spread over a period each consignment will be invoiced as dispatched and each invoice will be treated as a separate account and be payable accordingly.
ii. Failure to pay for any Goods and/or Services or for any delivery or instalment shall entitle the Seller to suspend further deliveries, guarantees and work both on the same Order and on any other Order from the Buyer without prejudice to any other right the Seller may have. The Seller also reserves the right to charge interest on overdue accounts at the rate of 4% per month. The Seller reserves the right where genuine doubts arise as to the Buyer’s ability to pay or in the case of failure to pay for any Goods and/or Services or any delivery or instalment as aforesaid to suspend delivery of any Order or any part or instalment without liability until payment or satisfactory security for payment has been provided.
iii. In the case of overseas contracts, and unless otherwise agreed in writing by the Seller, all payments shall be made by irrevocable Letter of Credit confirmed by a London Clearing Bank and valid for shipment and negotiation as stipulated in any Order Acknowledgement. All bank charges are to be borne by the Buyer. In the case of a FOB Contract, if Goods are ready for shipment and cannot be placed on board ship because the Buyer or his forwarding agent has not given due dispatch instructions within 21 days of being asked to do so or because vessels specified by the Buyer or his forwarding agent are not available for lading within 21 days of the date when the Goods are ready for shipment or because of any other cause outside the Seller’s control, then the Seller shall be entitled to place the Goods in storage (either at the Seller’s premises or at a third party's warehouse) store them and later remove them from storage at the risk and expense (including a charge at a commercial rate for storage at the Seller’s premises) of the Buyer, and the warehouse receipt shall replace the Bill of Lading as payment document.
iv. The Buyer is not entitled to withhold any due payment on the grounds of any equity set off or counterclaim.
v. Any deposit paid to the Seller shall, if the Contract is duly performed by the Buyer, be applied towards satisfaction of the purchase price or may, if the Buyer fails to perform the Contract be forfeited by the Seller at the Seller’s sole option.
i. Quotations submitted by the Seller will be valid for a period of 30 days, unless otherwise stated.
ii. Subject to clause 4(i) above where the Goods and/or Services are sold by reference to the Seller’s published price list, the price payable for the Goods and/or Services shall be the ruling price as published in the price list current at the date of acceptance by the Seller of the Order.
iii. In other cases and unless the price payable for the Goods and/or Services is stated to be fixed in the Contract, the price in the Contract is based on the wage rates and other costs of the Seller at the date of acceptance of the Order. If at the date of dispatch of Goods from the Seller’s works or performance of the Services there has been any increase in all or any of such costs, the price payable for the Goods and/or Services may at the request of the Seller be increased accordingly. Where the price for the Goods and/or Services is varied in accordance with this condition the price as varied shall be binding on both parties and shall not give either party any option to terminate the Contract.
iv. There shall be added to the price for the Goods and/or Services any value added tax and any other tax or duty relating to the manufacture, transportation, export, import, sale or delivery of the Goods and/or Services (whether initially charged on or payable by the Seller or the Buyer). All Goods are sold “Ex Works” unless otherwise stated. If the Seller arranges or undertakes the carriage, freight, insurance and any transport costs such costs including administration costs shall be for the Buyer's account and shall not affect the provisions of the Contract as to the passing of risk.
v. Where Goods are sold “Ex Works” or under other commercial terms, such as FOB, FAS, FOR, CIF etc., the definitions and rules in Incoterms® 2020 Rules shall apply, except as expressly provided in the Contract.
vi. The Seller reserves the right to amend prices if a suspension or alteration to the date, method or other particulars of delivery should be due to the Buyer’s instructions or lack of them.
vii. Payment of money by the Buyer for the Goods and/or Services must totally fulfil the value of the Seller's invoice in the currency stated therein inclusive of any bank or other charges.
5. DELIVERY AND CARRIAGE
i. Goods will be forwarded by such methods of transport as the Seller shall deem fit and the risk of loss or damage to the Goods shall pass to the Buyer at the time the Goods are consigned to the carrier. In effecting the contract of carriage the Seller shall be deemed to be acting as agent for the Buyer and in the event of loss or damage to the Goods in transit the Seller shall take reasonable steps to pursue a claim for such loss or damage against the carrier on the Buyer's behalf provided that notification of the loss or damage shall have reached the Seller within three days of the damage or loss arising and the Goods have been signed for “not examined”. The Seller's liability in respect of any such loss or damage if admitted shall in any event be restricted to the value of the Goods lost or damaged.
ii. Should the Buyer refuse to accept Goods provided in accordance with the Contract, or be unable to take delivery when the Goods are ready to be delivered the Seller reserves the right to invoice same for payment as if its part of the Contract had been fulfilled in every way. The Seller shall be entitled to place the Goods in storage (either at the Seller’s premises or at a third party’s warehouse) store them and later remove them from storage at the risk and expense (including a charge at a commercial rate) for storage at the Seller’s premises.
iii. The delivery or performance dates specified in the Contract are approximate only and, unless otherwise expressly stated, time is not of the essence to the Contract for delivery of the Goods or performance of the Services. The Seller will not be liable in any circumstances for the consequences of any delay in performing, or failure to perform, its obligations under the Contract if the duration of the delay is not substantial or if the delay or failure is due to any cause or event whatever beyond the Seller’s reasonable control (including, without limitation, epidemics, pandemics and Government actions, directions and regulations) or of an unexpected or exceptional nature ("Force Majeure Event").
iv. No delay shall entitle the Buyer to reject any delivery or any further instalment or part of the Order or any other Order from the Buyer or to repudiate the Contract or the Order.
v. The Seller cannot undertake to meet any schedule of the Buyer’s requirements supplied after the date of the Contract and will have no liability whatever for delay in meeting or failure to meet all or any of such requirements (howsoever such failure or delay may arise).
vi. The Seller will not be bound by any penalty for late delivery which the Buyer may seek to impose.
6. TITLE TO GOODS
Ownership of the Goods will not pass to the Buyer until payment for the Goods has been received by the Seller in full. Nevertheless, all risk in the Goods shall pass to the Buyer when the Goods are dispatched from the Seller’s premises. Until the time of actual payment to the Seller of the total amounts owing in respect of Goods the Buyer shall keep the Goods on behalf of the Seller and shall store the Goods in such a way that they are separately identifiable; nevertheless prior to the time of actual payment of the Goods the Buyer is entitled to use the Goods in the normal course of its business or to sell the Goods to third parties in the normal course of its business on behalf of and for the account of the Seller (but so that the Buyer shall not be deemed as against any such third party to be the agent of the Seller) on the condition that the Goods or any articles manufactured from or incorporating the Goods are and remain the property of the Seller until payment has been received by the Seller as aforesaid and any amounts received from third parties for the Goods or any articles manufactured from or incorporating the Goods are held by the Buyer for the account of the Seller as trustee for the Seller pending payment in full to the Seller and the Buyer hereby assigns to the Seller all rights and claims that the Buyer has against any such third party.
i. Subject as hereinafter stated, if any Goods supplied shall prove defective in material or workmanship within a period of one year from delivery of the Goods and the Buyer notifies such defect to the Seller in writing within fourteen days of it becoming apparent the Seller shall repair or replace at its option the Goods or any part thereof free of charge and any repair or replacement part shall be subject to the same guarantee. PROVIDED THAT the Seller shall be under no liability in respect of any defect if: a) the defect has arisen through fair wear and tear; or b) the Goods have not been used, maintained, stored or protected in the proper manner; or c) the Buyer or any other person has executed or attempted to execute repair or alteration to the Goods; or d) in the case of wire heating elements they prove defective as aforesaid more than four months after delivery or in the case of thermocouples they prove defective as aforesaid more than six months after delivery notwithstanding the foregoing provisions of this Condition; or e) in the case of Service or installation, only the work carried out will be covered, for a period of four months. AND PROVIDED FURTHER THAT if any defective part is not of the Seller’s manufacture the Buyer shall be entitled only to such guarantee as may have been given to the Seller by the manufacturer thereof and the Seller undertakes to pass the claim to such manufacturer.
ii. The guarantee aforesaid is in lieu of any other condition or warranty as to the quality or fitness for purpose of any Goods whether implied by common law or statute or otherwise, which are hereby excluded from the Contract to the fullest extent permitted by law, and the Seller shall in no circumstances be liable for any loss or damage whether by way of loss of production, loss of profits, wastage of labour or materials or otherwise howsoever caused.
iii. Any statements made about the Goods by the Seller or its employees, servants or agents whether orally or in writing are intended for guidance only and the Buyer should not place any reliance thereon without specific enquiry and without ensuring that any matter of concern to him is specifically mentioned in the Contract.
iv. The Buyer is solely responsible for ensuring routine calibration is carried out and satisfying himself any results are within the requirements of the relevant standards.
v. The Seller may refuse to repair or replace defective parts as long as the Buyer has not performed his obligations.
vi. The Seller shall perform the Services with reasonable care and skill.
i. The Buyer is solely responsible for the suitability of the site for the installation of the Goods, for obtaining all necessary consents and approvals under planning and building regulations and bye-laws and for the preparation of the site, the construction of foundations and the provision of services so that the site is suitable to receive the Goods.
ii. Unless the Contract expressly provides otherwise, the Contract does not include the installation, erection or commissioning of any Goods or equipment or the supervision thereof. Where installation is included in the Contract it is the responsibility of the Buyer to advise the Seller of prevailing site conditions with respect (inter alia) to physical characteristics, availability of services, normal working hours, availability of labour and any local or national labour arrangements or practices which might affect the work, and any other relevant factors. The Buyer shall ensure that the work can be carried out uninterrupted during normal working hours. Any additional costs caused by any interruption or delay not attributable to the Seller or its employees or because the Seller cannot gain access to the site shall be charged to the Buyer together with an appropriate allowance for profit. The Buyer shall also be responsible for providing a safe and healthy working environment for the Seller’s employees and the Seller's sub-contractors and their employees and shall bear (or reimburse the Seller against) any loss, damage or compensation due to any person in relation to any death or personal injury or destruction or damage to property except to the extent that the same is due to the negligence of the Seller and the Buyer shall except as aforesaid keep the Seller fully indemnified in respect thereof.
Any extra work, requirements or modification in relation to the Goods or their installation which is not expressly specified in the Contract or which is expressly specified in the Contract or which is expressly excluded by these Conditions and which the Buyer requests shall, if the Seller is able and willing to agree thereto, be charged extra (including an appropriate allowance for profit) to the extent that such extra work requirement or modification increases the costs to the Seller of performance of the Contract, and the Seller shall be allowed a reasonable extension or postponement of performance or delivery dates required to comply with any such request.
i. Without affecting any other right or remedy available to it, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if:
a. the Buyer commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;
b. the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
c. the Buyer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
d. the Buyer's financial position deteriorates to such an extent that in the Seller's opinion the other party's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or
e. a Force Majeure Event continues for a period of 14 days or more.
ii. On termination of the Contract:
a. the Buyer shall immediately pay to the Seller all of the Seller's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Seller shall submit an invoice, which shall be payable by the Buyer immediately on receipt; and
b. the Buyer shall return all of the Contract Materials and any deliverables forming part of the Services and Goods which have not been fully paid for.
11. LIMITATION OF LIABILITY: THE BUYER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
i. Nothing in the Contract limits any liability for:
a. death or personal injury caused by negligence;
b. fraud or fraudulent misrepresentation; and
c. any other liability which cannot legally be limited.
ii. Subject always to clause 11(i), notwithstanding any other conflicting provision in the Contract, the Seller's total liability to the Buyer under or in connection with the Contract shall not exceed an amount equal to the total sums payable by the Buyer to the Seller under the Contract.
iii. Subject always to clause 11(i), the Seller's liability under the Contract for the following types of loss is excluded:
a. loss of profits;
b. loss of sales or business;
c. loss of agreements or contracts;
d. loss of anticipated savings;
e. loss of use or corruption of software, data or information;
f. loss of or damage to goodwill; and
g. indirect or consequential loss.
i. Each party undertakes that it shall not disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12(ii).
ii. Each party may disclose the other party's confidential information:
a. to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 12; and
b. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
iii. No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
i. Assignment. The Seller may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract. The Buyer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Seller.
ii. Notices. Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
a. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
b. sent by email to the address specified in Order, the Order Acknowledgement or otherwise in the Contract (as the case may be).
iii. Any notice shall be deemed to have been received:
a. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
b. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
c. if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.00pm during any Business Day.
iv. Clauses 13(ii) and 13(iii) do not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
v. Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision or part provision of the Contract is deemed deleted under this clause the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
vi. Entire agreement.
a. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
b. Each party acknowledges that in entering into the Contract it does not rely on, and shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misrepresentation based on any statement in the Contract.
vii. Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
14. GOVERNING LAW AND JURISDICTION
The Contract shall be governed by English Law and the parties submit to the exclusive jurisdiction of the English Courts.
15. WEEE (Waste Electrical and Electronic Equipment as defined in the WEEE regulations SI2006/3289)
i. The Buyer shall:
a. be responsible for financing the collection, treatment, recovery and environmentally sound disposal of: 1) all WEEE arising or deriving from the Goods 2) all WEEE arising or deriving from products placed on the market prior to 13 August 2005 where such products are to be replaced by the Products and the Products are of an equivalent type or are fulfilling the same function as that of such products;
b. comply with all additional obligations placed upon the Buyer by the WEEE Regulations by virtue of the Buyer accepting the responsibility set out in clause 11(i)a;
c. provide the Seller’s WEEE compliance scheme operator with such data, documents, information and other assistance as such scheme operator may from time to time reasonably require to enable such operator to satisfy the obligations assumed by it as a result of the Seller’s membership of the operator’s compliance scheme.
ii. The Buyer shall be responsible for all costs and expenses arising from and relating to its obligations in clause 11(i) iii. Further information in respect of the arrangements set out in clause 11(i) can be found at www.electrolink.eu.com by clicking on the ‘Take Back and Final User Obligations’ button and quoting WEEE registration number WEE/EA0061TU where prompted.