1. Definitions and Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings:
“Contract” means the contract formed as detailed in clause 2, which shall incorporate, and be subject to, these Terms and Conditions;
“Customer” means the sole trader, firm or corporate body ordering the Goods. Where the person ordering the Goods is an individual doing so on behalf of a business, that person confirms they have the authority to contractually bind and enter into the Contract on behalf of that business and the business shall be the Customer in the context of this Contract;
“Delivery Date” means the estimated date on which the Goods are to be delivered;
“Goods” means the goods which are to be supplied by us to you as specified in your Order (and confirmed by us in accordance with clause 2.6);
“Order” means your order for the Goods; and
“Price” means the price payable for the Goods.
1.2 Each reference in these Terms and Conditions to:
1.2.1 “we”, “us” and “our” is a reference to the Company and includes our employees and agents;
1.2.2 “you” and “your” is a reference to the Customer and includes your employees and agents;
1.2.3 “writing” and “written” includes emails and faxes;
1.2.4 a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time;
1.2.5 “these Terms and Conditions” is a reference to these Terms and Conditions as amended or supplemented at the relevant time;
1.2.6 a clause is a reference to a clause of these Terms and Conditions; and
1.2.7 a “Party” or the “Parties” refer to the parties to these Terms & Conditions.
1.3 The headings used in these Terms and Conditions are for convenience only and shall have no effect upon their interpretation.
1.4 Words imparting the singular number shall include the plural and vice versa. References to any gender shall include the other gender.
2. The Contract
2.1 The Customer will be required to complete and return an account application form to us before any Order can be placed.
2.2 If we accept your account application form, at our sole discretion, we will open an account for you and will provide you with a price list for all Goods available to Order from us.
2.3 Orders can be placed by email, by telephone and also by post or in person.
2.4 If you send us a purchase order, we will check the prices on your purchase order against our up-to-date price list. If the prices do not match, we will contact you to advise of the correct price and will obtain your consent before proceeding.
2.5 Any credit limit we offer to you will be subject to clause 4.4 and may be revoked by us at any time.
2.6 A legally binding Contract between the parties will be created upon our acceptance of your Order. The Contract will incorporate and be subject to these Terms and Conditions. Orders will be confirmed by way of the sooner of:
2.6.1 Our confirmation in writing; or
2.6.2 The provision of our invoice for the Goods.
2.7 If the Goods are not in stock or are only partially in stock when you place your Order, we will contact you to advise of this and to ask if you would prefer us to deliver the Goods in instalments as they arrive in stock or if you would prefer to wait for the entire delivery when we have all the Goods in stock. Please note each part-delivery may incur separate delivery costs.
2.8 No order submitted by the Customer shall be deemed to be accepted by the Company unless and until confirmed in accordance with clause 2.6, by an authorised representative of ours.
2.9 No terms or conditions stipulated or referred to by you in any form whatsoever shall in any respect vary or add to these Terms and Conditions unless otherwise agreed by us in writing.
2.10 No variation to these Terms and Conditions, or to the Contract, shall be binding unless agreed in writing between the authorised representatives of the parties.
2.11 Any quotation we provide will be valid for a period of 30 days from the date of issue unless expressly stated otherwise.
2.12 Any sales literature, price lists and other documents issued by us in relation to the Goods are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. We reserve the right to correct any typographical, clerical or other accidental errors without liability.
3. The Goods
3.1 None of our employees or agents are authorised to make any representations concerning the Goods unless confirmed by us in writing. In entering into the Contract, the Customer acknowledges that they do not rely on, and waive any claim for breach of, any such representations which are not so confirmed.
3.2 We reserve the right to make any changes in the specification of the Goods that may be required to conform to any applicable safety or other legal or regulatory requirements without notice.
3.3 The specification for the Goods shall be as set out in our sales documentation. The Goods will only be supplied in the minimum units as stated in our price list, or in multiples of those units. Orders received for quantities other than these minimum units will be adjusted accordingly.
3.4 Any illustrations, photographs or descriptions we provide, whether on our website or in catalogues, brochures, price lists or other documents issued by us are intended as a guide only and shall not be binding.
3.5 You may change your Order at any time before we dispatch the Goods by contacting us in writing or by telephone. If your Order is changed, we will inform you of any change to the Price.
3.6 No order which has been accepted by the Company may be cancelled by you except with our agreement in writing on the terms that you shall indemnify us in full against all loss (including loss of profit), costs (including all labour and materials used), restocking, charges and expenses incurred by us as a result.
3.7 We may cancel your Order at any time before we dispatch the Goods if Goods are no longer in stock and we are unable to re-stock (if, for example, the Goods are discontinued), if the Customer goes into administration, becomes insolvent or bankrupt or we reasonably believe this is about to occur, or an event occurs outside of our control (please see clause 15 below).
3.8 If we cancel your Order and you have already paid for the Goods under clause 4, the payment will be refunded to you within 14 days.
3.9 If we cancel your Order, the cancellation will be confirmed by us in writing.
3.10 It is your responsibility to ensure that any use, re-sale or distribution of the Goods by you is in compliance with all instructions and manuals issued by us, and any applicable statutory requirements. If the Goods are to be shipped, re-sold or distributed outside of the UK, the Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon, unless otherwise agreed.
4. Price & Payment
4.1 We reserve the right to alter our Prices at any time. This will not affect Orders already accepted by us. However, we reserve the right to increase the Price for Orders accepted by us, if the cost of the Goods to us increases due to any factor beyond our control including, but not limited to, material costs, labour costs, alteration of exchange rates or duties, or changes to delivery rates. We will contact you to advise of any increase in writing.
4.2 Any Prices we provide are exclusive of VAT, delivery costs and any other taxes or levies which are imposed or charged by any competent authority.
4.3 We will invoice you once your Order has been confirmed, in accordance with clause 2.6. If the Goods are not in stock or are only partially in stock when you place your Order, we will invoice for the out-of-stock Goods when they become available for dispatch. Therefore, we may issue part-invoices for the Order.
4.4 However, we reserve the right to request payment up front if do not have an account with us, if you exceed your credit limit, or if, for any reason, we are not satisfied of your creditworthiness, or if we so decide at our sole discretion. In this event, no Goods will be released for delivery or collection until such time as any pro-forma invoice issued by us has been paid in full.
4.5 All invoices are payable in full, without any deduction, retention or set off, strictly within 30 days from the date of invoice, or otherwise in accordance with such credit terms as may have been agreed in writing between the parties. Payment shall be made on the due date notwithstanding that delivery may not have taken place and/or that the property in the Goods has not passed to the Customer. The time for the payment shall be of the essence of the Contract.
4.6 Where we are requested to carry out unique product development of Goods, any non-recurring engineer (NRE) fee will become due and payable at the price and in accordance with the payment terms outlined in the contract agreement.
4.7 If you do not make payment to us by the due date, we may cancel your Order(s) or suspend any further deliveries to you and charge you interest on the overdue sum at the rate of 8% per annum above the Bank of England base lending rate from time to time. Interest will accrue on a daily basis from the due date for payment until the actual date of payment of the overdue sum, whether before or after judgment. You must pay any interest due when paying an overdue sum. We will not charge interest if you have promptly contacted us to dispute an invoice in good faith. No interest will accrue while such a dispute is ongoing.
5.1 When we confirm acceptance of your Order, we will provide an estimated delivery date. Please note that estimated delivery dates may vary according to the availability of Goods, your location, and circumstances beyond our control. Time for delivery shall not be of the essence of the Contract.
5.2 The cut-off time for same-day dispatch is 3pm on a working day, subject to stock availability.
5.3 Delivery will be deemed to have taken place when the Goods have been delivered to the delivery address indicated in your Order or on collection from our premises.
5.4 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by us to deliver any one or more of the instalments in accordance with these Terms and Conditions shall not entitle you to treat the Contract as a whole as repudiated.
5.5 If for any reason we are unable to deliver the Goods at your chosen delivery address, we will leave a note informing you that the Goods have been returned to our premises, requesting that you contact us to arrange re-delivery. The re-delivery and storage will be chargeable. We may also, at our discretion, charge for restocking and administration costs.
5.6 We may, at our discretion, decline to deliver the Goods to your chosen delivery address if we deem it to be unsuitable for any reason. In this event, we will contact you and request you collect the Goods from our premises and the provisions of clause 5.5 above will apply.
6. Risk and Retention of Title
6.1 Risk of damage to or loss of the Goods shall pass to you:
6.1.1 in the case of Goods to be collected, at the time when we notify you that the Goods are available for collection; or
6.1.2 in the case of Goods to be delivered, at the time of delivery or, if you wrongfully fail to take delivery of the Goods, at the time when we tendered delivery of the Goods.
6.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, legal and beneficial title of the Goods shall not pass to you until we have received in cleared funds payment in full of the price of the Goods.
6.3 Until payment has been made to us in accordance with these Terms and Conditions and title in the Goods has passed to you, you shall be in possession of the Goods as bailee for us and you shall store them separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by us and shall insure the against all reasonable risks.
6.4 You shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain our property, but if you do so, all money owing by you to us shall (without prejudice to any other right or remedy of ours) become immediately due and payable.
6.5 We shall be entitled at any time to require you to deliver up to us any goods in which we retain title and, if you fail to do so forthwith, to enter upon any premises of yours or any third party during normal business hours where the Goods are stored and repossess the Goods.
6.6 Your right to possession of the Goods in which we maintain legal and beneficial title shall terminate if any of the events listed in clause 10.1 occurs.
7. Returns and Refunds
7.1 If you are not satisfied with the Goods and wish to return them, you may do so only provided:
7.1.1 you inspect the Goods on delivery or on collection as the case may be. Where the Goods cannot be examined the delivery note or such other note as appropriate shall be marked “not examined”.
7.1.2 you first contact your account manager and our technical support department, who will issue you with an RMA number;
7.1.3 you inform us that you wish to return the Goods within 72 hours of delivery;
7.1.4 the Goods remain in their original condition (as delivered);
7.1.5 the Goods are returned at your risk and you agree to bear the cost of delivery to us; and
7.1.6 you indemnify us against any cost incurred by us in rectifying any deterioration of the Goods caused by incorrect storage or use while in your possession.
7.2 If, on receipt, the Goods are proven by us to be damaged or defective, and you comply with clause 7.1 above, we may refund the cost of delivery, at our discretion.
7.3 All Goods must be returned to us under this clause 7 in their original condition, in their original, un-opened packaging, accompanied by proof of purchase.
7.4 Replacement of the Goods (or the defective part thereof), or any credit or refund offered at our discretion, shall be issued to you only upon the receipt of the Goods in accordance with this clause 7.
7.5 If the Goods are not returned in the original packaging, we will charge or deduct a small fee from the refund or credit as applicable.
7.6 If you require an advance replacement and we agree to this, you will be required to pay for the advance replacement up front and we will credit or refund this to you only once we receive the original Goods, provided our technical support department have confirmed the Goods were damaged or defective. The original Goods must be returned to us within 30 days (or 45 days if the delivery address was outside of the UK). In sending an advance replacement, we are not admitting any liability for any defect or otherwise.
8.1 We guarantee that, with the exception of normal wear and tear, the Goods will be free from defects for a period of 2 years from collection or delivery, unless otherwise stated. If any defects appear due to no fault of yours during this period, we will rectify any and all such defects at no cost to you.
8.2 This guarantee is subject to payment having been received by us in full in accordance with clause 4 and the limitations in clause 12.4.1.
8.3 In the event of a defect becoming apparent within the guarantee period, you must contact your account manager and our technical support department within 7 days of becoming aware of such defect, who will issue you with an RMA number. If we agree that the Goods should be returned, the Goods will be returned at your risk and you agree to bear the cost of delivery to us. If, on receipt, the Goods are proven by us to be damaged or defective, and you comply with clause 8.2 above, we may refund the cost of delivery at our discretion.
8.4 We will repair or replace the Goods at our discretion.
8.5 Advance replacements will be subject to clause 7.6 above.
8.6 Any repaired or replaced Goods reissued within the guarantee period will also be covered by the guarantee, but only for the remainder of the original guarantee period.
9. Site Investigations and Training
9.1 In the event we are required to attend site, whether to investigate any issue with the Goods, to provide training or otherwise, you or your representative (and all training delegates, where applicable) must be available on site at the agreed day and at the agreed time. We require a minimum of 14 days’ notice to cancel or rearrange any agreed visit.
9.2 If we do not receive the required notice and/or we are unable to gain access through no fault of our own, we reserve the right to charge for the aborted visit, together with any travel, accommodation and other costs incurred by us.
9.3 We also reserve the right to charge for the site visit if our technician discovers the alleged issue to be caused by anything other than a fault with the Goods, including, but not limited to, a fault caused by the installation.
9.4 It is your responsibility to ensure the site conditions are safe and suitable for our employees. This includes, but is not limited to, ensuring all reasonable health and safety precautions are taken and current HSE (Health & Safety Executive) guidelines are followed at all times.
10.1 We may cancel any Order and/or suspend further deliveries, terminate your account and charge interest in accordance with clause 4.7 if:
10.1.1 you fail to perform or observe any of your obligations under the Contract or if you are otherwise in breach of the Contract;
10.1.2 you become subject to an administration order or enter into a voluntary arrangement or (being an individual or firm) become bankrupt or (being a company) go into liquidation;
10.1.3 an encumbrancer takes possession, or a receiver is appointed, of any of your property or assets;
10.1.4 you cease, or threaten to cease, to carry on business; or
10.1.5 we reasonably apprehend that any of the events mentioned above is about to occur in relation to you and we notify you accordingly.
10.2 If sub-clause 10.1 applies then, without prejudice to any other right or remedy available to us, payment for any Goods that have been delivered but not paid for shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11. Assignment: We may assign the Contract or any part of it, and may sub-contract any of our obligations to any person, firm or company without your prior consent. You shall not be entitled to assign the Contract or any part of it without our prior written consent.
12. Limitation of Liability
12.1 The following provisions set out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you in respect of:
12.1.1 any breach of these Terms and Conditions or the Contract;
12.1.2 any use made (including but not limited to modifications) or resale by you of any of the Goods, or of any product incorporating any of the Goods;
12.1.3 and any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
12.2 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
12.3 Nothing in these Terms and Conditions excludes or limits our liability for death or personal injury caused by our negligence; fraud or fraudulent misrepresentation, or any other matter which it would be illegal for us to exclude or attempt to exclude our liability.
12.4 Subject to sub-clauses 12.2 and 12.3:
12.4.1 We shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to improper conditions, failure to follow our instructions (whether given orally or in writing), misuse, attempted repair or alteration of the Goods without our prior approval, or any other breach of these conditions or act or omission on the part of the Customer, its employees or agents or any third party;
12.4.2 our total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price; and
12.4.3 we shall not be liable to you for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
13.1 You will regard as confidential the Contract and all information obtained by you relating to our business and/or Goods and will not use or disclose to any third party such information without our prior written consent provided that this undertaking shall not apply to information which is in the public domain other than by reason of your default.
13.2 You will not use, authorise or permit any other person to use any name, trademark, house mark, emblem or symbol which we are licensed to use or which is owned by us upon any premises, note paper, visiting cards, advertisement or other printed matter or in any other manner whatsoever unless such use shall have been previously authorised by us in writing and (where appropriate) its licensor.
13.3 The provisions of this clause 13 shall survive the termination of the Contract.
14. Intellectual Property
14.1 We own and reserve all copyright, intellectual property and any other rights (if any) which may subsist in the Goods and any other document, drawing, specification or other information provided to you.
14.2 You may not, under any circumstances, copy, alter, modify or adapt the Goods or reverse engineer, decompile, disassemble, modify or create derivative works from the Goods.
14.3 We reserve the right to take such actions as may be appropriate to restrain or prevent infringement of such rights and you shall indemnify us for any such infringement.
15. Force Majeure: Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, acts of terrorism or war, governmental action or any other event beyond the control of the Party in question.
16. Communications: All notices under these Terms and Conditions shall be addressed to the most recent address, email address or fax number notified to the other party, in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party). Notices shall be deemed to have been duly given: when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated; on the fifth day following mailing, if mailed by national ordinary mail; or on the tenth day following mailing, if mailed by airmail.
17. Data Protection: All information that we may collect will be collected, used and held in accordance with the provisions of the General Data Protection Regulation 2016.
18. Third Party Rights: The Contract is between you and us. It is not intended to benefit any other person or third party in any way and no such person or party will be entitled to enforce any provision of these Terms and Conditions pursuant to the Contracts (Rights of Third Parties) Act 1999.
19. Entire Agreement
19.1 These Terms and Conditions, the Contract and any Distributor Agreement shall form the entire agreement between the parties and shall supersede any previous agreement between us.
19.2 In the event of any conflict between these Terms and Conditions and any Distributor Agreement, the latter shall prevail unless otherwise agreed in writing.
19.3 Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms (the international rules for the interpretation of trade terms of the International Chamber of Commerce in force at the date the Contract is made) shall have the same meaning in these Terms & Conditions, but if there is any conflict between the provisions of Incoterms and these Terms & Conditions, the latter shall prevail.
20. Severance: The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions are found to be unlawful, invalid or otherwise unenforceable by any court or other authority, that / those provision(s) shall be deemed severed from the remainder of these Terms and Conditions. The remainder of these Terms and Conditions shall be valid and enforceable.
21. Waiver: The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.
22. Governing Law and Jurisdiction
22.1 These Terms and Conditions and the Contract shall in all respects be governed by, and construed in accordance with the laws of England and Wales.
22.2 Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or to the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the exclusive jurisdiction of the courts of England and Wales.