While every effort is made to ensure the completeness and accuracy of the information contained on our website and in our literature relating to Pacer’s products, such information is general in nature and is not intended to make any representation about the suitability of any particular product or component for a customer’s specific requirements. Please contact us to discuss your requirements and we will be happy to provide advice on the best products from our range to meet your needs. We do not accept liability for any loss or damage that may be suffered as a result of a customer placing reliance on information and statements within our literature or contained on our website, without having discussed those requirements with us and detailing such requirements in a purchase order and/or quotation.
Terms and Conditions for the Sale of Goods and Provision of Services
1.1 The definitions and rules of interpretation in this clause apply in these terms and conditions (Terms and Conditions).
- Buyer: the person, firm or company who purchases the Goods from the Company.
- Company: Pacer Components Ltd (registered in England under number 02448361 and which uses the name “Pacer International” for its worldwide operations).
- Contract: any contract between the Company and the Buyer for the sale and purchase of Goods and/or for the provision of Services, incorporating these Terms and Conditions.
- Delivery Point: the place where delivery of the Goods is to take place under clause 6.
- Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
- Order Confirmation: the written acknowledgement of the Buyer’s order or of the Buyer’s acceptance of the Quotation and which must be provided by the Company to the Buyer in order to make a Contract.
- Quotation: the quotation for the Goods and/or Services provided to the Buyer by the Company whether written or oral.
- Services: the services to be provided by the Company under the Contract as set out in the Order Confirmation (or, where the Services are not expressly referred to in the Order Confirmation, in the applicable Quotation).
- VAT: value added tax chargeable under English law for the time being and any similar additional tax.
1.2 A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Clause headings do not affect the interpretation of the provisions of these Terms and Conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under clause 2.3 the Contract shall be on these Terms and Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract merely as a result of such document being referred to in the Contract.
2.3 These Terms and Conditions apply to all the Company’s sales of Goods and provision of Services and any variation to these Terms and Conditions and any representations about the Goods and/or Services shall have no effect unless expressly agreed in writing and signed by an authorised representative of the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this clause shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, order acknowledgement, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company. Nothing in this clause shall exclude or limit the Company’s liability for fraudulent misrepresentation.
3. MAKING THE CONTRACT; CHANGE ORDER
3.1 A Buyer wishing to purchase Goods and/or Services shall either place an order or provide the Company with a request for a Quotation, setting out the requirements and specifications of the Goods and/or Services which it is requesting from the Company, including (as applicable) a description of what work is to be done, dates by which it is requested to be started and finished and the Goods to be supplied, and shall provide the Company with such materials and information as will allow the Company to prepare a Quotation.
3.2 Each order by the Buyer or acceptance by the Buyer of a Quotation shall be deemed to be an offer by the Buyer to buy Goods and/or Services subject to these Terms and Conditions.
3.3 No order, oral or written, placed by the Buyer (or acceptance by the Buyer of a Quotation from the Company) shall be deemed to be accepted by the Company until an Order Confirmation is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer or starts to provide the Services.
3.4 Any Quotation is given on the basis that no Contract shall come into existence until the Company despatches an Order Confirmation to the Buyer. Any Quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.5 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate and shall be responsible for giving the Company any necessary information relating to the Goods and/or Services within a sufficient time to enable the Buyer to perform the Contract in accordance with its terms.
3.6 The Company may, in its absolute discretion, decline to accept orders.
3.7 Once the Order Confirmation has been issued, the Contract is made and no amendment shall be made to it except in accordance with clauses 3.8 to 3.10 below.
3.8 If either party wishes to change the scope or execution of the Contract, the Company shall, within a reasonable time, provide a written estimate to the Buyer of: (a) the likely time required to implement the change; (b) any variations to the Company’s charges arising from the change; and (c) the likely effect of the change on the terms of the Contract.
3.9 If the Buyer wishes the Company to proceed with the change, the Company has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its charges and any other relevant terms of the Contract to take account of the change.
3.10 The Company reserves the right to make any changes in the specification of the Goods and/or Services which are required to conform with any applicable legal or regulatory requirements (including but not limited to safety requirements) or which do not materially affect their quality or performance. If the Company requests a change to the specification of the Goods and/or Services for any other reason, the Buyer shall not unreasonably withhold or delay consent to it.
4. COMMENCEMENT AND DURATION OF SUPPLY OF GOODS OR SERVICES
4.1 The Company shall supply the Services to the Buyer from the date specified in the Order Confirmation (or, where no start date is expressly referred to in the Order Confirmation, in the applicable Quotation).
4.2 Unless otherwise specified in the Order Confirmation or unless the Contract is terminated under clause 16, the Company shall continue to supply the Services until the earlier of (a) the Services are completed as specified in the Order Confirmation (or, where no such terms are specified in the Order Confirmation, in the applicable Quotation) or (b) 12 months from the start date (as determined in accordance with clause 4.1).
4.3 Unless otherwise specified in the Order Confirmation, where the Company is supplying Goods to the Buyer and no date or period for such supply is specified in the Order Confirmation, the Buyer shall ensure that it takes the delivery of such Goods no later than 12 months from the date of the Order Confirmation.
4.4 The Company may sub-contract the provision of all or part of the Services at its absolute discretion.
4.5 For the avoidance of doubt, where the Contract is for the purchase of a quantity of Goods which are to be delivered over a period of time as requested by the Buyer, the Buyer shall be committed to purchase the amount of Goods specified in the Order Confirmation within the period detailed in the Order Confirmation (or the period specified in clause 4.3) and in the event that the Buyer has not taken delivery of all of the Goods within that period, the Company shall be entitled to raise an invoice on the Buyer for such remaining Goods at the end of that period.
5. DESCRIPTION OF THE GOODS AND/OR SERVICES
5.1 The quantity and description of the Goods and/or Services shall be as set out in the Order Confirmation (or, where no quantity and description is expressly referred to in the Order Confirmation, in the applicable Quotation).
5.2 All samples, drawings, descriptions, specifications, illustrations and advertising issued by the Company or contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or Services described in them. They shall not form part of the Contract and this is not a sale by sample.
5.3 If the Goods are to be manufactured or any process is to be applied to the Goods or any Services are to be supplied by the Company in accordance with any plans, designs, specifications or instructions submitted by the Buyer, the Buyer shall indemnify the Company against all claims, liabilities, suits, losses, damages and expenses, including costs and reasonable attorney’s fees, relating to or resulting from: (a) any actual or alleged infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Buyer’s plans, designs, specifications or instructions; and/or (b) the Company’s use or implementation of such plans, designs, specifications or instructions (except to the extent the Company’s use or implementation is not in compliance with such plans, designs, specifications or instructions).
5.4 Where the Buyer has specified that any Goods or any materials used in the manufacture of Goods are (or are not) to originate from a particular location, the Company shall use reasonable endeavours to enquire as to the origin of such Goods or materials, but shall not be deemed to make any statement, promise or warranty regarding the origins of the Goods or materials. For the avoidance of doubt, in the event that such Goods or materials are found to originate from such specified location, the Company shall have no liability to the Buyer in respect of this.
6. DELIVERY OF THE GOODS
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Company’s premises at any time after the Company has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Company, by the Company delivering the Goods to that place.
6.2 Any dates specified by the Company for delivery of the Goods are intended to be an estimate only and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
6.3 Subject to the other provisions of these Terms and Conditions, the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence).
6.4 Where delivery of the Goods shall take place at the Company’s premises, the Buyer shall take delivery of the Goods within seven (7) days of the Company giving it notice that the Goods are ready for delivery.
6.5 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate or adequate instructions, documents, licences or authorisations:
- risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company’s negligence); and
- the Goods shall be deemed to have been delivered; and
- the Company may store the Goods until actual delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance); or
- the Company may 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.
6.6 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
6.7 The Company may deliver the Goods by separate instalments. Each such instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
6.8 No order which has been accepted by the Company may be cancelled by the Buyer except with the agreement in writing of the Company and on terms that the Buyer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
7. NON-DELIVERY OF THE GOODS
7.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
7.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company of the non-delivery within five (5) working days of the date when the Goods would in the ordinary course of events have been received.
7.3 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
8. PASSING OF RISK AND TITLE IN THE GOODS
8.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
- in the case of Goods to be delivered at the Company’s premises, at the time when the Company notifies the Buyer that the Goods are available for collection; or
- in the case of Goods to be delivered otherwise than at the Company’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Company has tendered delivery of the Goods.
8.2 The Buyer shall keep the Goods fully insured against all risks normally insured against at least throughout the period from the passing of risk in the Goods until the passing of property in them in accordance with clause 8.3.
8.3 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
- the Goods; and
- all other sums which are or which become due to the Company from the Buyer on any account.
8.4 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
- hold the Goods on a fiduciary basis as the Company’s bailee;
- store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
- not use the Goods or install them into any other product or equipment;
- not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
- maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
8.5 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
- any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
- any such sale shall be a sale of the Company’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
8.6 The Buyer’s right to possession of the Goods shall terminate immediately if:
- the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer;
- the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade; or
- the Buyer encumbers or in any way charges any of the Goods.
8.7 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
8.8 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
8.9 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
8.10 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this clause 8 shall remain in effect.
9. THE COMPANY’S OBLIGATIONS IN RESPECT OF THE SERVICES
9.1 The Company shall use reasonable endeavours to provide the Services in accordance in all material respects with the Order Confirmation (or, where no service requirements are expressly specified in the Order Confirmation, in accordance with the applicable Quotation).
9.2 The Company shall use reasonable endeavours to meet any performance dates specified in the Order Confirmation (or, where no performance dates are expressly specified in the Order Confirmation, in accordance with the applicable Quotation), but any such dates shall be estimates only and time shall not be of the essence of the Contract.
9.3 The Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Services (even if caused by the Company’s negligence).
10. THE BUYER’S OBLIGATIONS IN RESPECT OF THE GOODS AND SERVICES
10.1 The Buyer shall:
- co-operate with the Company in all matters relating to the Goods and/or Services and appoint a project manager in relation to the Contract, who shall have the authority contractually to bind the Buyer on matters relating to the Services;
- promptly provide all materials and information specified in the Order Confirmation (or, where none are expressly specified in the Order Confirmation, in accordance with the applicable Quotation) and/or any further information or materials which the Company considers necessary for the provision of Goods and/or Services and ensure that it is accurate in all material respects;
- ensure that any and all equipment, tools, systems, software, products or materials provided by the Buyer to the Company for use directly or indirectly in the supply of the Goods and/or Services is in good working order and suitable for the purposes for which it is used and conforms to all relevant United Kingdom standards or requirements and with all relevant laws and regulations; and
- obtain and maintain all necessary licences and consents (including without limitation in respect of third party intellectual property rights) pertaining to any products or materials provided to the Company, and shall indemnify the Company in respect of any and all claims, losses, costs and/or expenses relating thereto.
10.2 If the Company’s performance of its obligations under the Contract is prevented or delayed by any act or omission of the Buyer, its agents, sub-contractors or employees, the Company shall not be liable for any costs, charges or losses sustained or incurred by the Buyer arising directly or indirectly from such prevention or delay.
10.3 The Buyer shall be liable to pay to the Company, on demand, all reasonable costs, charges or losses sustained or incurred by the Company (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Buyer’s fraud, negligence, failure to perform or delay in the performance of any of its obligations under the Contract, subject to the Company confirming such costs, charges and losses to the Buyer in writing.
11. PRICE OF GOODS
11.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the Order Confirmation (or, where no price is expressly specified in the Order Confirmation, in accordance with the Company’s invoice).
11.2 All prices quoted are business estimates only and are subject to revision at the absolute discretion of the Company if, as a result of the cancellation, alteration or rescheduling of order due to the Buyer’s instructions or lack of instruction, the Company incurs extra costs prior to the completion of the order, whether arising from increases in the cost of materials, labour, freight, duties or any change in the parity of exchange rate.
11.3 Except as otherwise stated under the terms of any quotation of the Company, and/or unless otherwise agreed in writing between the Buyer and the Company, all prices are given on an ex-works basis and shall be exclusive of any VAT, any other existing or future taxes, duties, levies or tariffs applicable to the Goods themselves or to the sale of the Goods, and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
11.4 Unless otherwise expressly agreed in writing, the Company shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Company shall be entitled to invoice the Buyer for the price at any time after the Company has notified the Buyer that the Goods are ready for collection or (as the case may be), the Company has tendered delivery of the Goods.
11.5 Invoices shall be payable in accordance with the provisions set forth in clause 13.
11.6 The Company reserves the right to increase the price of the Goods by giving notice to the Buyer at any time to reflect any increase in the cost of the Goods to the Supplier that is due to any foreign exchange fluctuations above 3%.
12. PRICE OF SERVICES
12.1 Unless otherwise agreed by the Company in writing, the price for the Services shall be the price set out in the Order Confirmation (or, where no price is expressly specified in the Order Confirmation, in accordance with the Company’s invoice).
12.2 The total price for the Services shall be paid to the Company (without deduction or set-off) on the payment terms set forth in the Order Confirmation (or, if none specified, in the Company’s invoice), and in accordance with clause 13. At the end of a period specified in the Order Confirmation (or, where no such periods are expressly specified in the Order Confirmation, in accordance with the Company’s invoice) in respect of which a payment is due (whether an instalment or the total price), the Company shall invoice the Buyer for the charges that are then payable and adding VAT, where appropriate, at the appropriate rate.
13.1 Subject to clause 13.5, payment of the price for the Goods and/or Services is due in pounds sterling (or such other currency as may be specified on the invoice) within the timeframe specified on the Company’s invoice (or, if none specified, within 30 days of the date of the Company’s invoice).
13.2 Time for payment shall be of the essence.
13.3 No payment shall be deemed to have been received until the Company has received cleared funds.
13.4 In the event that the Buyer makes payment by credit card, the Company may at its entire discretion add a 2.5% surcharge to the amount being paid.
13.5 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
13.6 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
13.7 If the Buyer fails to pay the Company any sum due pursuant to the Contract by the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
- terminate the Contract or suspend all Services and/or any further deliveries of Goods to the Buyer;
- appropriate any payment made by the Buyer to such of the Goods and/or Services (or the goods and/or services supplied under any other contract between the Buyer and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Buyer);
- charge the Buyer interest on the amount unpaid, at the rate of two percent (2%) per annum above the base lending rate from time to time of Barclays Bank, accruing on a daily basis until payment is made, whether before or after any judgment; and/or
- cancel any other contract between the Buyer and the Company subject to giving notice in writing to the Buyer.
13.8 Should it be necessary for the Company to instruct solicitors in order to obtain advice in connection with a default of the Buyer under the Contract and/or should it be necessary for the Buyer to take steps to recover monies due under the Contract from the Buyer where those monies have not been paid over by the due date the Buyer shall be responsible for the Company’s legal costs and shall pay the same within 14 days of receipt of a copy of the Company’s solicitor’s invoice for the work they have carried out, such monies being payable whether or not proceedings are issued.
14.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour in so far as it is able to transfer to the Buyer the benefit of any warranty or guarantee given to the Company. Without prejudice to the provisions of any such warranty transferred to the Buyer, the provisions of clauses 14.3 to 14.10 (inclusive) and clause 15 shall apply to limit the liability of the Company under any such warranty.
14.2 The Company warrants that, subject to clause 14.8 and the other provisions of these Terms and Conditions, where the Company is the manufacturer of the Goods shall correspond with their description at the time of delivery and be free from defects in material and workmanship for the period specified in the Order Confirmation or, if none specified, for a period of twelve (12) months from the date of delivery (the “Warranty Period”).
14.3 The Company shall not be liable for a breach of the warranty in clause 14.2 unless:
- the Buyer gives written notice of the defect to the Company within five (5) working days of the time when the Buyer discovers or ought to have discovered the defect; and
- the Company is given a reasonable opportunity after receiving the notice to examine such Goods in the same condition and location as when delivered, and/or the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost for the examination to take place there.
14.4 The Company shall not be liable for a breach of the warranty in clause 14.2 if:
- the Buyer makes any further use of such Goods after giving such notice;
- the defect arises from any drawing, design or specification of the Buyer;
- the defect arises from fair wear and tear, wilful damage, negligence, abnormal working conditions or misuse of the Goods;
- the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
- the Buyer alters or repairs the Goods without the written consent of the Company; or
- the total price for the Goods has not been paid by the due date for payment.
14.5 Subject to clause 14.3 and clause 14.4, if any of the Goods do not conform with the warranty in clause 14.2 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Company’s expense, return the Goods or the part of such Goods which is defective to the Company. If the Company requires return of the Goods (or defective Goods) under this clause, the Company shall not be obliged to make any replacement or refund unless and until such Goods have been received and tested by the Company.
14.6 No Goods (including defective Goods) shall be returned to the Company without the Buyer requesting from the Company an RMA number for such Goods. Any Goods which are returned to the Company without an appropriate RMA number may be returned by the Company to the Buyer. The Company can refuse to issue an RMA number in respect of the Goods if it believes that the Goods are not defective.
14.7 If the Company complies with clause 14.5 it shall have no further liability for a breach of the warranty in clause 14.2 in respect of such Goods.
14.8 The warranty in clause 14.2 does not extend to parts, materials or equipment incorporated into the Goods which are not manufactured by the Company, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company and which the Company is able to pass on in accordance with clause 14.1.
14.9 Any Goods replaced shall belong to the Company and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the Warranty Period.
14.10 If it is found that any Goods examined or returned in accordance with clause 14.3(b) are still serviceable and that the claim that they were defective was made without just cause, the Buyer will be notified and (where applicable) the Goods returned at the Buyer’s expense and risk. In addition, a reasonable charge for testing and examination may, in the Company’s sole discretion, be applied (and if so shall be payable by the Buyer within 30 days).
15. LIMITATION OF LIABILITY
15.1 Other than the provisions (and limitations) on liability specified in clause 6, clause 7, clause 9 and clause 14, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
- any breach of these Terms and Conditions;
- any use made or resale by the Buyer of the Services or any part of them;
- any use made or resale by the Buyer of the Goods or any part of them or of any product incorporating any of the Goods; and
- any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
15.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
15.3 Nothing in these Terms and Conditions excludes or limits the liability of the Company:
- for death or personal injury caused by the Company’s negligence;
- under section 2(3), Consumer Protection Act 1987;
- for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
- for fraud or fraudulent misrepresentation.
15.4 Subject to clause 15.2 and clause 15.3 and except as expressly stated herein:
- the Company shall not be liable to the Buyer for:
- pure economic loss;
- loss of profits;
- loss of business;
- depletion of goodwill and/or similar losses;
- loss of anticipated savings;
- loss of contract;
- loss of use;
- loss of corruption of data or information; or
- any special, indirect or consequential loss or any claims for costs, expenses or consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract; and
- the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price.
15.5 These Terms and Conditions are intended to cover business to business transactions. In the event the Buyer under a Contract is a consumer, the consumer’s statutory rights are not adversely affected.
15.6 The Buyer acknowledges that the above provisions of this clause 15 are reasonable and reflected in the Contract price which may be higher without those provisions, and the Buyer will accept such risk and/or insure accordingly.
16.1 Subject to clause 16.3, each Contract for Goods shall terminate automatically on delivery of the Goods.
16.2 Subject to clause 16.3, each Contract for Services shall terminate automatically on completion of the Services in accordance with the Order Confirmation (or, where no expiration date is expressly specified in the Order Confirmation, in the applicable Quotation).
16.3 Without prejudice to any other rights or remedies which the parties may have, either party may terminate the Contract without liability to the other on giving the other not less than sixty (60) days written notice, or immediately on giving notice to the other if:
- an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order of the other party;
- an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986);
- a receiver is appointed of any of the other party’s assets or undertaking, or circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets;
- the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way;
- the other party ceases, or threatens to cease, to trade; or
- the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
16.4 On termination of the Contract for any reason:
- the Buyer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest and, in respect of Services provided and/or Goods supplied but for which no invoice has been submitted, the Company may submit an invoice, which shall be payable immediately on receipt;
- the Buyer shall, within a reasonable time, return all Confidential Information (as defined in clause 21); and
- the accrued rights of the parties as at termination and the continuation of any provision expressly stated to survive or implicitly surviving termination, shall not be affected.
17.1 The Company may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
17.2 The Buyer shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
18. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Company) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, accident, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), breakdown of plant or machinery, default or delays of suppliers or sub-contractors, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
19. INTELLECTUAL PROPERTY
19.1 All intellectual property and other proprietary rights (including, but not limited to, all discoveries, inventions, patents, copyright, design rights and trade marks) and all technical or similar information (including, but not limited to, all designs, engineering details, documents and other data and materials relating to the Goods and/or Services) developed or created by the Company in respect of the provision of the Services (excluding rights existing in the information or materials supplied by the Buyer to the Company) shall be, and shall remain, the property of the Company only.
19.2 By providing the Goods and/or Services, the Company grants to the Buyer a non-exclusive non-transferable licence of the Company’s intellectual property rights for the sole purpose of enabling the Buyer to install the customised Goods designed and supplied by the Company to meet the requirements set out in the Order Confirmation (or, where none are expressly specified in the Order Confirmation, in accordance with the applicable Quotation) in the Buyer’s goods or equipment. The Buyer undertakes that it will not infringe the Company’s intellectual property rights by manufacturing or engaging to have manufactured such customised Goods without the Company’s express prior written consent.
20.1 The Buyer shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes, equipment, tools, drawings, designs or initiatives which are of a confidential nature and have been disclosed to the Buyer by the Company, its employees, agents or sub-contractors and any other confidential information concerning the Company’s business, its services or its products (or of third parties which the Company holds in confidence) which the Buyer may obtain (“Confidential Information”). The Buyer shall restrict disclosure of such Confidential Information to such of its employees, agents or sub-contractors as need to know the same for the purpose of discharging the Buyer’s obligations to the Company, and shall ensure that such employees, agents or sub-contractors are subject to obligations of confidentiality corresponding to those which bind the Buyer.
20.2 The obligations in clause 20.1 shall not apply, or shall cease to apply, to any part of the Confidential Information that the Buyer can show to the reasonable satisfaction of the Company has become public knowledge (other than through the fault of the Buyer or an employee or director of the Buyer to whom it has been disclosed under clause 20.1 above); or was already known to the Buyer prior to disclosure to it by the Company; or has been received from a third party who neither acquired it in confidence from the Company, nor owed the Company a duty of confidence in respect of it.
21. EXPORT TERMS
21.1 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 21 shall (subject to any special terms agreed in writing between the Buyer and the Company) prevail over any other conflicting provision of these Terms and Conditions.
21.2 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 taxes, including VAT, and/or duties thereon, and for obtaining (at its own expense) any and all documents, certificates, licenses and authorizations necessary for the export and import of the Goods, and the Buyer will indemnify the Company in respect of any and all claims relating thereto.
21.3 Unless otherwise agreed in writing between the Buyer and the Company, the Goods shall be delivered “ex-works” (as defined by the ICC’s “Incoterms” in force at the date when the Contract is made) and the Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
21.4 The Company excludes all liability to the extent permitted by law for any costs, losses or damages resulting from the Buyer’s use or attempted use of the Goods in countries other than the United Kingdom.
21.5 Payment of all amounts due to the Company shall be made by wire transfer to the Company or by such other means of payment as the Company may specify in relation to the Contract.
22.1 By placing an order, the Buyer allows the Company to use the Buyer’s personal details for the purposes of supplying the Goods and performing the Services (including passing the Buyer’s details on to sub-contractors) and for the marketing to it by the Company.
22.2 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
22.3 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
22.4 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
22.5 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
22.6 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
22.7 Nothing in the Contract is intended to, or shall operate to, create a partnership between the parties, or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
22.8 Clauses 8, 10, 11, 12, 13, 14, 15, 16, 17, 19, 20, 21, 22 and 23, and all indemnities expressed herein, shall survive the termination of the Contract.
22.9 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts for the adjudication of any disputes arising under this Contract or, at the option of Company, shall be submitted to arbitration in accordance with and subject to the provisions of the Arbitration Act 1996 or any statutory re-enactment or replacement thereof being for the time being in force.
23.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax.
23.2 Communications addressed to the Company shall be marked for the attention of the Managing Director.
Updated 25th August 2015