Terms and Conditions
Elite Security Products Limited Terms and Conditions of Sale
1. Interpretation
1.1. | In these conditions of sale the following words will (unless the context otherwise requires) have the following meanings:
"Conditions" means the conditions set out below and in the Order Acknowledgement. Where any terms below conflict with any terms in the Order Acknowledgement the terms in the Order Acknowledgement will take precedence.
"Contract" means any contract between the Supplier and the Customer for the sale of
any Works.
"Customer" means the company, firm, body or person purchasing the Works.
"Customer's Property" means any Goods returned by the Customer to the Supplier (which
are found to be NDF under Clause 9.7 or any specifications, drawings, designs, packagings,
equipment, goods, materials, instructions, approvals or information supplied by or on
behalf of the Customer to the Supplier in connection with the Works.
"EEE" means electrical and electronic equipment, regulated by the WEEE Regulations.
"Goods" means any goods or materials which the Supplier agrees to provide to the
Customer.
"IPR" means all Confidential Information, patents, trade marks and service marks, rights in designs, trade or business names, copyright (including rights in computer software), database rights and topography rights (whether or not any of these is registered and including applications for registration of any such thing) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world.
"Order Acknowledgement" means the written acknowledgement of and acceptance by
the Supplier of the Customers request to purchase any Works.
"Services" means any work and/or services which the Supplier agrees to provide to the
Customer.
"Supplier" means Elite Security Products Limited (company number 02769392) whose
main business address is at Unit 7, Target Park, Shawbank Road, Lakeside, Redditch, B98
8YN.
"WEEE" means waste electrical and electronic equipment, regulated by the WEEE
Regulations.
“WEEE Regulations” means the Waste Electrical and Electronic Equipment Regulations
2006, as amended by The Waste Electrical and Electronic Equipment (Amendment)
Regulations 2007.
"Works" means Goods and/or Services (as appropriate).
| 1.2. | The words "agreed in writing" will mean expressly agreed in writing and signed by a director of the Supplier. |
1.3. | The headings are for reference only and will not affect the interpretation of these Conditions. |
1.4. | the Supplier reserves the right at anytime without liability to correct any clerical, typographical or other similar errors or omissions made by it's employees. |
2.
Quotations
2.1. | Any quotation (whether written or oral) is given on the basis that no contract will come into existence other than in accordance with the provisions of Clauses 3.5 and 3.6. | 2.2. | Unless otherwise agreed in writing any quotation is valid only for a period of 24 hours from its date of issue provided that the Supplier has not previously withdrawn it by written or oral notice to the Customer. |
3.
Application of Terms
3.1. |
(Subject to Clause 3.4) these Conditions are the only conditions on which the
Supplier is prepared to deal with the Customer and they will govern the Contract
and all of the Supplier's future supplies to the Customer. |
3.2. | No terms, conditions or warranties endorsed upon, delivered with, referred to or
stipulated or contained in any purchase order or other similar document delivered
or sent by the Customer to the Supplier will form part of the Contract. |
3.3. | Any reference in the Order Acknowledgement to the Customer's purchase order or
other similar document will not be deemed to imply that any terms, conditions or
warranties endorsed upon, delivered with, referred to, stipulated or contained in
such purchase order or other similar document will form part of the Contract. |
3.4. | No employee or agent of the Supplier has authority to vary these Conditions orally.
No variation to, waiver of or addition to these Conditions or any representation
about the Works will have any effect unless it is agreed in writing and contains a
specific reference to these Conditions and is signed on the Supplier's behalf by a
director of the Supplier. |
3.5 | Each purchase order for Works issued by the Customer will be deemed to be an
offer by the Customer to purchase Works subject to these Conditions. | 3.6 | No purchase order placed by the
Customer will be deemed to be accepted by the Supplier
until an Order Acknowledgement is issued by the Supplier
or (if earlier) the Supplier supplies the Works to the
Customer. |
3.7 | The Customer must ensure that the
content of its order and any applicable specification
are complete and accurate. | 3.8 |
Unless otherwise agreed in
writing all drawings, illustrations, descriptions,
specifications, technical data, advertising and other
similar information issued by the Supplier or
contained on the Supplier's Website or in the
Supplier's catalogues, brochures, trade literature,
price lists or other similar published materials are
issued or published only for the purpose of giving an
approximate idea of the Works described in them and
will not form part of the Contract. |
3.9 | Any purchase order which has been
accepted by the Supplier in accordance with Clause 3.6
may only be cancelled, postponed or varied by the
Customer with the prior written consent of the
Supplier and on terms that the Customer will indemnify
the Supplier in full against all losses (including but
not limited to loss of profit), costs (including but
not limited to inventory and other commitments made by
the Supplier as a result of such purchase order),
damages, charges and expenses incurred (directly or
indirectly) by the Supplier as a result of such
cancellation, postponement or variation. |
4. Delivery
4.1. | Any times specified or agreed by the
Supplier for the delivery of the Works are given in good
faith but are an estimate only. The Supplier will use
its reasonable endeavours to deliver the Works within the
times specified in the O\rder Acknowledgement or otherwise
agreed in writing and if no time is specified or agreed
by the Supplier delivery will take place within a
reasonable time. The time for the delivery of the Works
will not be of the essence of the Contract. |
4.2. | (Subject to the provisions of Clause
4.3) the Customer will collect the Works from the
Supplier's place of business and delivery will be deemed
to take place when the Supplier notifies the Customer
that the Works are ready for collection and unless
otherwise agreed in writing the Customer will collect
the Works within 3 working days of the issue of such
notice. | 4.3. | If the Supplier agrees to deliver
the Works then subject to Clause 4.4 delivery will be
deemed to take place when the Works are delivered to the
Customer at the place stated in the Supplier's Order
Acknowledgement or such other place as the parties may
agree except that delivery to a carrier for the purpose
of transmission to the Customer will be deemed to be
delivery to the Customer and sections 32(2) and (3) of
the Sale of Goods Act 1979 will not apply. |
4.4. | Subject to Clause 4.3 the Supplier
will make such arrangements for the carriage and
insurance of the Works as it thinks appropriate but the
Customer will indemnify the Supplier against any costs
or expenses the Supplier incurs as a result of such
carriage and insurance (including but not limited to
export and/or import duties and any costs of packing,
loading and/or unloading) such costs and/or expenses to
be paid by the Customer when it is due to pay for the
Works. | 4.5. |
The Supplier will use
reasonable endeavours to ensure where necessary that
the Works will be packed so as to be adequately
protected against damage in normal conditions of
transit of usual duration. | 4.6. | The Supplier may deliver the Works
in instalments. Deliveries of further instalments may
be withheld until the Works comprised in earlier
instalments have been paid for in full. Default by
the Supplier (howsoever caused) in respect of one or
more instalments will not entitle the Customer to
terminate the relevant Contract as a whole. |
4.7. |
In the event of any
delay in the delivery of any Goods and/or the
performance of any Services which are attributable to
any act or omission by the Customer:
4.7.1 | delivery of the Goods and/or
performance of the Services will be deemed to have
taken place at the time which but for such delay,
delivery or performance it would have taken place and
any extra costs (including but not limited to storage
and insurance costs) incurred as a result of such
delay will be added to the Contract price and paid by
the Customer; and |
4.7.2 |
the Supplier may sell or
otherwise dispose of such Goods (as it sees fit)
28 days after such delay and deduct any monies
payable to the Supplier by the Customer from the
sale proceeds and account to the Customer for any
excess or charge the Customer for any
shortfall. | | 4.8. |
Where the Works are to be
supplied from stock such supply is subject to the
availability of the stock at the date of
delivery. | 4.9. | On delivery to the Customer all
Works should be examined by the Customer. The
Supplier will not be liable for any damage to or any
shortages in or non-delivery of the Works (even if
caused by the Supplier's negligence) unless the same
is notified in writing by the Customer to the Supplier
(together with all relevant details) within 48 hours
of the actual or anticipated date of delivery (as
appropriate). Any damage to or any shortages in or
non-delivery of part of the Works will not affect the
Contract in respect of the other parts of the
Works. |
4.10. | Subject to a notice being provided
in accordance with Clause 4.9 the Supplier will, if it
is reasonably satisfied that any Works have not been
delivered as a result of the Supplier's fault (in its
sole discretion) either arrange for delivery as soon
as reasonably possible or (where the Contract price
has been invoiced) give credit (at the pro rata
Contract price) to the Customer for such Works. |
4.11. | If the Supplier complies with
Clause 4.9 it will (subject to Clause 10.2) have no
further liability (in contract, tort (including but
not limited to negligence) or otherwise) for such
shortages or non-delivery. |
4.12. | The Customer will (at its own
expense) provide such advice, assistance and information
as may be required to enable the Supplier to perform its
obligations under this Contract. |
5. Risk and Ownership
5.1. | The Customer acknowledges that before
entering into this Contract it has expressly represented
and warranted that it is not insolvent and has not
committed any act of bankruptcy, or being a company with
limited and unlimited liability, knows of no
circumstances which would entitle any debenture holder or
secured creditor to appoint a receiver, to petition for
winding up of the Customer or exercise any other rights
over or against the Customer's assets. |
5.2. |
(Unless otherwise agreed in
writing) the Goods are at the risk of the Customer
from the time of delivery or deemed delivery (as
appropriate) to the Customer in accordance with these
Conditions and loading and off loading (as
appropriate) will be at the Customer's risk. Section
20(2) of the Sale of Goods Act 1979 will not
apply. | 5.3. |
(Notwithstanding that
risk in the Goods will pass to the Customer in
accordance with the provisions of clause 5.2)
ownership of the Goods (both legal and equitable) will
remain with the Supplier (unless ownership is properly
vested in some other person by the operation of any
statute) until the Supplier has received in full (in
cash or cleared funds):
5.3.1. |
all sums due in respect
of the Goods; and | 5.3.2. |
all other sums which are
or which become due to the Supplier from the
Customer on any account. |
| 5.4. |
Until ownership of the
Goods has passed to the Customer under Clause 5.3,
the Customer will: 5.4.1. |
hold the Goods on a
fiduciary basis as the Supplier's bailee; |
5.4.2. |
keep the Goods free from
any charge, lien or other encumbrance; |
5.4.3. |
store the Goods (at no
cost to the Supplier) separately from all other
goods or materials of the Customer or any third
party in such a way that they remain readily
identifiable as the Supplier's property and
easily accessible to the Supplier; |
5.4.4. |
not destroy, deface or
obscure any identifying mark on the Goods or
their packaging; |
5.4.5. |
maintain the Goods in a
satisfactory condition; | 5.4.6. |
insure the Goods on the
Supplier behalf for their full price or
replacement value (whichever is the greater)
against all usual risks and to the reasonable
satisfaction of the Supplier and on request
produce such policy of insurance to the
Supplier; |
5.4.7. |
hold all proceeds of the
insurance referred to in clause 5.4(f) on trust
for the Supplier and not mix it with any other
money or pay the proceeds into any overdrawn bank
account; and | 5.4.8 |
allow the Supplier
access at any reasonable time to enable the
Supplier to verify that the Customer has
complied with its obligations under this Clause
5.4. | | 5.5. |
The Customer may resell,
use or otherwise dispose of the Goods before
ownership has passed to it only if any such
sale, use or disposition will be effected in the
ordinary course of the Customer's business at
full market value and will be a sale, use or
disposition of the Supplier's property on the
Customers own behalf and the Customer will deal
as principal when marking such sale, use or
disposition. |
5.6. | Once payment becomes due, the
Supplier may while the owner of the Goods (without
prejudice to its other rights) demand the immediate
return of the Goods at any time and the Customer must
comply with (and bear the cost of) such demand
immediately. If the Customer fails to return such Goods,
the Customer grants to the Supplier or its successors in
title, and their respective employees and agents, an
irrevocable license to enter the Customer's premises
(with or without vehicles) to remove the Goods (the cost
of which shall be borne by the Customer) and may sell or
otherwise deal with the Goods. | 5.7. |
The Supplier will be entitled
to recover payment for the Goods notwithstanding that
ownership of any of the Goods has not passed from the
Supplier. | 5.8. | The Goods will be deemed sold or
used in the order delivered to the Customer. |
6. Goods Stocked
Against Anticipated Orders
By arrangement between the
Supplier and the Customer, and at the Supplier's entire
discretion, Goods may be stocked by the Supplier against
anticipated future purchase orders for such Goods from
the Customer. In all such cases:
6.1. | The maximum period for which such
goods shall be retained by the Supplier
("the Maximum Period" shall be
as agreed between the Supplier and the Custiomer or,
where no specific arrangement has been reached for the
maximum period for which the Goods are retained by the
Supplier, such period shall be deemed to be 6 calendar
months. |
6.2. | All Goods remaining retained at the
end of the Maximum Period shall, at such date, be deemed
to have been the subject of a purchase order on that
date from the Customer to the Supplier and which has
been the subject of an Order Acknowledgement for prompt
delivery to the Customer. Payment will be required in
accordance with Clause 7. | 7. Price and Payment
7.1. | The price for the Works will be the
price set out in the Order Acknowledgement (or otherwise
agreed in writing) between the parties. |
7.2. |
Each price is based on the scope
of the Works and the instructions and information
provided by the Customer. The Supplier reserves the
right (in its absolute discretion) to amend the price to
cover any increase in cost which may arise as a result
of additional Works being requested by the Customer (and
agreed by the Supplier) or additional or incomplete
instructions or information being provided by the
Customer. | 7.3. | Quotations given in a currency other
than sterling are based on the rate of exchange at the
time of quoting and (unless otherwise agreed in writing
between the parties) the price may be subject to
revision if any different rate of exchange is ruling at
the date of invoice. |
7.4. | (Unless otherwise agreed in writing
and subject to circumstances in which free delivery may
be available as set out in this Clause 7.4) the price
for the Works is exclusive of any value added tax (and
any other tax or duty relating to the manufacture,
transportation, sale or delivery of the Works) and any
costs or charges in relation to export and/or import,
packaging, loading, unloading, carriage and insurance.
Such costs and expenses will be paid by the Customer
when it is due to pay for the Works. Works may qualify
for free delivery, depending on the designation of the
Customer and the volume of Works ordered in a given
period. Further details may be obtained from the
Supplier's Sales Office. | 7.5. | Where the Supplier agrees (in its
discretion) to bring forward the date of delivery of the
Works at the Customers request any additional costs
reasonably incurred by the Supplier shall be charged to
the Customer in addition to the Contract price. |
7.6. | the Supplier may invoice the Customer
for the Works at any time after the delivery of the Works
or the delivery of any instalment (as appropriate). If
any delivery is postponed at the request or by the default
of the Customer then the Supplier may submit its invoice
at any time after the Works are ready for delivery or
would have been ready but for such request or default on
the part of the Customer. | 7.7. | (Unless otherwise agreed in writing)
where the terms for payment in the Order Acknowledgement
show "COD", the Supplier will not be bound to
deliver the Goods until the Customer has paid the price
for them. Payment shall be due before the Delivery
Date. |
7.8. | (Unless otherwise agreed in writing)
where the terms for payment in the Order Acknowledgement
show "Net", payment of the price will be due on
the date when the period as specified in the Order
Acknowledgement expires. | 7.9. |
Where no terms for payment are
set out in the Order Acknowledgement or otherwise agreed
in writing payment of the price will be made within 30
days from the date of delivery of the Works. |
7.10. | No payment will be deemed to have
been received until the Supplier has received cleared
funds. |
7.11. | Time for payment will be of the
essence of the Contract and the Customer will indemnify
the Supplier against all reasonable expenses, debt
recovery fees, Court fees, solicitor's fees and
disbursements incurred by the Supplier in recovering
overdue amounts. | 7.12. | All payments payable to the Supplier
under the Contract will become due immediately on
termination of this Contract notwithstanding any other
provision of these Conditions. |
7.13. | The Customer will make all payments
due under the Contract without any deduction whether by
way of set-off, counterclaim, discount, abatement or
otherwise unless the Customer has a valid court order
requiring an amount equal to such deduction to be paid by
the Supplier to the Customer. | 7.14. | the Supplier may (but will not be
obliged) at any time or times without notice to the
Customer set off any liability of the Customer to the
Supplier against any liability of the Supplier to the
Customer (in either case howsoever arising and whether
such liability is present, future, liquidated or
unliquidated). the Supplier and Customer agree that in
exercising this right to set off, the Supplier shall be
doing no more than discharging its own liability by the
application of its own asset. Any exercise by the Supplier
of its rights under these Conditions will be without
prejudice to any other rights or remedies available to the
Supplier under these Conditions or otherwise. |
7.15. | If the Customer fails to pay the
Supplier any sum due pursuant to the Contract the Customer
will, subject to Clause 7.16, be liable to pay interest to
the Supplier on such sum from the due date for payment at
an annual rate of 4% above the base lending rate of HSBC
Bank plc from time to time accruing on a daily basis until
payment is made in full (whether before or after any
judgement). | 7.16. |
As an alternative to its remedy
in Clause 7.15 the Supplier reserves the right to claim
interest under the Late Payment of Commercial Debts
(Interest) Act 1998. | 7.17. |
Without prejudice to the
provision of Clauses 7.14 and 7.15 if the Customer fails
or the Supplier reasonably believes that the Customer
will fail to pay for the Work or any other work under
any other contract when due the Supplier may:
7.17.1. |
demand payment of all
outstanding balances whether due or not under this
Contract or any other contract between the
Customer and the Supplier; | 7.17.2. |
treat the Contract or any
other contract between the Customer and the
Supplier as repudiated by the Customer; |
7.17.3. |
suspend any future
performance of the Contract or any other contract
between the Customer and the Supplier until all
overdue sums have been paid; or | 7.17.4. |
appropriate any payments
made by the Customer to such of the Works (or such
works supplied under any other contract between the
Customer and the Supplier) as the Supplier may think
fit (notwithstanding any purported appropriation by
the Customer). |
| 8. Quality
8.1. | The Customer acknowledges that the
Supplier is not the manufacturer of the Goods and may
not itself perform any or all of the Services and that
the Supplier's expertise is in the sourcing of the Works
only. The Customer acknowledges that as an intermediate
supplier of the Goods the Supplier only checks the
external packaging of the Goods for obvious signs of
damage and does not in any way inspect the quality or
condition of the Goods themselves. | 8.2. | The Customer acknowledges that the
manufacturer of the Works typically provides warranty
assurances directly for the benefit of end users of the
Works. |
8.3. | The Customer acknowledges that the
Supplier does not hold itself out as having any particular
expertise in relation to the actual Works and the Customer
agrees that it relies entirely on its own skill and
judgement in evaluating the suitability and fitness of the
Works for its purpose. | 8.4. | The Customer acknowledges that the
prices charged by the Supplier for the Works are based
strictly on the quality assurances set out in this Clause
8. |
8.5. | Based on the acknowledgements set out
in this Clause 8 the Supplier will:
8.5.1. |
use its reasonable
endeavours to transfer to the Customer the benefit
of any warranty or guarantee given to the
Supplier; | 8.5.2. |
comply with its returns
policy as set out in Clause 9; and |
8.5.3. |
(where the Supplier itself
performs the Services rather than procuring a
third party to perform the Services to the
Customer on behalf of the Supplier) perform the
Services with reasonable skill and care. |
| 8.6. |
The Customer agrees that the
Supplier will not (subject to Clauses 8.5 and 10.1) be
responsible for or give any warranties in relation to
the quality or suitability of the Works and that
provided the Supplier complies with the provisions of
Clause 8.5 the Supplier will (subject to Clause 10.2)
have no further liability (in contract, tort (including
but not limited to negligence) or otherwise) for any
quality or suitability claims in relation to the
Works. | 9. Returns Policy
9.1. | Any Goods to be returned by the
Customer to the Supplier will only be dealt with by the
Supplier in accordance with the provisions set out in
this Clause 9. | 9.2. | Where the Customer wishes to return
any Goods (for any reason) the Customer should first
contact the Supplier’s Sales Office. Should the problem
not be resolved to the Customer's satisfaction the
Customer should proceed in accordance with the remainder
of this Clause 9. |
9.3. | Returns Reference Number
("RRN"). An RRN must be obtained from the
Supplier's Sales Office before any return will be
processed in accordance with this Clause 9. Goods
returned without a valid RRN are likely to be rejected by
the Supplier. RRNs are valid for 10 days from the date of
issue. If the Goods are not returned within 10 days the
RRN will be cancelled and a new RRN must be requested if
the Customer still wishes to return the Goods. When
preparing the Goods for return the Customer must ensure
that the RRN is clearly visible on a label on the outer
covering. | 9.4. |
Incorrectly Ordered Goods.
Incorrectly ordered Goods are the responsibility of the
Customer. The Customer acknowledges that the Supplier is
under no obligation to accept the return of incorrectly
ordered Goods. If the Supplier agrees to accept the
return of Incorrectly Ordered Goods then a
handling/restocking fee of at least 20% will be
invoiced. The percentage charged will depend on amongst
other things the amount of labour involved and the
condition of the packaging and contents and the Supplier
reserves the right to insist on a purchase order
covering this cost and the return freight cost before
returning the Goods. | 9.5. | Returns Due to Later Delivery.
Returns due to late delivery must be requested by fax or
e-mail within 24 hours of the due delivery date. The
original purchase order must contain details of any
cut-off delivery date and the Supplier must agree in
writing that a deadline for delivery had been accepted
by the Supplier. If the Supplier has accepted such
deadline the Supplier will at its own cost arrange for
the collection of goods falling into this category. |
9.6. | Defective On Arrival
("DOA") Goods. DOA Goods are those found to
have a fault on delivery. The fact that there is a
fault must be confirmed by someone with technical
knowledge and the Customer must provide as much specific
technical detail as is reasonably possible. DOA Goods
must be notified within 7 days of delivery of the Goods
in order to qualify for credit or replacement (at the
Supplier's option and in the Supplier's absolute
discretion). The packaging of the Goods must be in
pristine condition otherwise the Customer will be
subject to a minimum 20% handling/restocking fee. The
freight cost of returning the Goods to the Supplier will
be the responsibility of the Customer. The Supplier
will meet the reasonable costs of returning replacement
Goods (as appropriate) to the Customer and also any
carriage costs incurred in sorting the problem out. |
9.7. | No Defect Found ("NDF").
If Goods are returned and are found to be of NDF status
a handling/restocking fee of at least 20% will be
invoiced. The percentage charged will depend on amongst
other things the amount of labour involved and the
condition of the packaging and contents and the Supplier
reserves the right to insist on a purchase order
covering this cost and the return freight cost before
returning the Goods. |
9.8. | Goods Returned Not In Original
Condition. Goods returned where the packaging and/or
contents is found not to be in its original condition are
likely to be rejected on arrival. Should the Supplier
agree to accept such Goods (in its absolute discretion)
the Supplier reserves the right to impose a
handling/re-stocking fee of at least 20% of the original
sale value of the Goods. Should items be damaged in
transit during its return to the Supplier it is the
responsibility of the Customer (and not the Supplier) to
take this matter up with the carriers. | 9.9. |
Packaging and Labelling. Where
possible, the packaging of the Goods being returned
should be protected by using an outer cover. The
Customer should not write on, or attach labels, to the
packaging itself if this can be avoided. When preparing
the Goods for return the Customer should ensure that the
RNN is easily visible on a label on the outer
covering. | 9.10. | Overdue Accounts. No returns will
be accepted from any Customer whose account is
overdue. |
9.11. |
the Supplier will not be
obliged to comply with any of the provisions in this
Clause 9 unless 9.11.1. | (where the Goods are faulty and the
fault is apparent on reasonable inspection) the Customer
gives written notice of the fault to the Supplier within
7 days of the date of delivery of the Goods; and |
9.11.2. |
(where the Goods are faulty
and fault is not apparent on reasonable inspection)
the Customer gives written notice of the fault to
the Supplier within 7 days of the date when the
Customer discovers or ought reasonably to have
discovered the fault. | |
9.12. |
Notwithstanding any other
provision of this Clause 9 if the Goods are found to be
faulty but: 9.12.1. | the fault arises as a result of the
Customer's negligence; |
9.12.2. |
the fault arises as a
result of fair wear and tear or abnormal working
conditions; | 9.12.3 |
the fault arises as a
result of any misuse, physical damage (including
but not limited to dropping, spillage or foreign
objects) or accident (unless the Supplier is
directly responsible for such); |
9.12.4 | the Customer makes any further
use of the Goods after giving written notice of a
fault; | 9.12.5 |
the fault arises because
the Customer has failed to follow the Supplier's
or the manufacturers instructions (whether oral or
in writing) as to the storage, assembly, use,
handling or maintenance of the Goods or (if there
are none) good trade practice; | 9.12.6 |
the fault arises as a
result of any testing or commissioning of the
Goods performed by the Customer or any third
party; |
9.12.7 |
the fault arises as a
result of any alteration, servicing or repair of
the Goods not made by the Supplier; or |
9.12.8 |
the Customer acknowledges
that the Contract states that the Goods are sold
in their actual state without warranty then the
Customer acknowledges that the Supplier is not
obliged to comply with its obligations under this
Clause 9, that the Supplier reserves the right to
apply a reasonable labour charge to the Customer
without completing any repair and the Supplier
reserves the right to retain the Goods until a
purchase order is received covering the labour
charge and the return freight cost. |
| 10. Limitation of
Liability
10.1. |
All warranties, conditions and
other terms implied by statute or common law (except for
the conditions implied by section 12 of the Sale of
Goods Act 1979 but subject always to the provisions of
Clause 13.2)) are, to the fullest extent permitted by
law, excluded from the Contract. | 10.2. | Nothing in these Conditions exclude
or limit the liability of the Supplier for fraudulent
misrepresentation or for any death or personal injury
caused by the Supplier's negligence. |
THE CUSTOMER'S ATTENTION IS
IN PARTICULAR DRAWN TO THE PROVISIONS OF CLAUSES 10.3
AND 10.4 10.3. |
(Subject to Clauses 10.1
and 10.2) the Supplier will not be liable to the
Customer in contract, tort (including but not limited to
negligence), misrepresentation or otherwise for any:
10.3.1. |
economic loss of any kind
(including but not limited to loss of use, profit,
anticipated profit, business, contracts, overhead
recovery, machining costs, revenue or anticipated
savings); | 10.3.2. |
any damage to the
Customer's reputation or goodwill; |
10.3.3. |
any product recall or
business interruption costs: or | 10.3.4. |
any other special, indirect
or consequential loss or damage (even if the
Supplier has been advised of such loss or damage)
arising out of or in connection with the
Contract. |
| 10.4. | (Subject to the provisions of
clause Clauses 10.1, 10.2 and 10.3) the Supplier's
total liability in contract, tort (including but not
limited to negligence), misrepresentation or
otherwise arising out of or in connection with this
Contract will be limited to the Contract price. |
10.5. | The provisions of this Clause 10
shall survive the termination or expiry (for whatever
reason) of this Contract. | 10.6. | THE PRICES CHARGED FOR THE WORKS ARE
BASED STRICTLY ON THE UNDERSTANDING OF ACCEPTANCE BY THE
CUSTOMER OF THE PROVISIONS IN THE CONTRACT FOR THE
LIMITATION OF THE SUPPLIER’S LIABILITY. SHOULD THE
CUSTOMER REQUIRE THE SUPPLIER TO ACCEPT ADDITIONAL
LIABILITY THIS MAY BE DISCUSSED BETWEEN THE PARTIES AND
THE PRICE INCREASED ACCORDINGLY. |
11. The
Customer's Property
11.1. | While the Supplier will take reasonable
care of the Customer's Property whilst it is in the
Supplier's possession, control or custody the Customer's
Property will (unless otherwise agreed in writing) remain at
the Customer's risk and responsibility. |
11.2. | the Supplier will not be liable for
any loss or damage to the Customer's Property unless such
loss or damage arises as a direct result of the Supplier's
negligence. Where the Supplier is liable under this
Clause 11.1 the Supplier's liability to the Customer will
be limited to the actual cost of the replacement or repair
of the loss or damage to the Customer's Property. |
11.3. | The Customer will ensure that the
Customer's Property is in good condition and suitable for
use by the Supplier in the performance of the Contract and
while the Supplier will use reasonable endeavours to
verify any relevant aspects of the Customer's Property no
responsibility is accepted by the Supplier for its
accuracy. |
11.4. | Any defect in the Works which is due
in whole or in part to the Customer's Property will not
entitle the Customer to terminate the Contract, reject the
Works, make any deductions from the Contract price or
claim damages in respect of such defect. |
11.5. |
The Customer will keep the
Supplier indemnified in full against all liability,
loss, damage, injury, claim, action, demand, expense or
proceeding awarded against or incurred by the Supplier
as a result of or in connection with the use by the
Supplier of the Customer's Property. | 11.6. | The Supplier (without prejudice to
any other remedy it may have) has a general lien on all
of the Customer's Property in its possession (for any
reason) in respect of all sums owed to the Supplier by
the Customer. |
12. Confidentiality
12.1. | The Customer will keep confidential all
technology, technical data, commercial information,
know-how, specifications, inventions, processes,
initiatives and other information which is of a
confidential nature and which has been disclosed to the
Customer by the Supplier or its agents and any other
confidential information concerning the Supplier's business
or its products which the Customer may obtain as a result
of or in connection with the Contract ("Confidential
Information"). |
12.2. | The Customer will restrict disclosure
of the Confidential Information to such of its employees,
agents or subcontractors as need to know the same and will
ensure that such employees, agents or subcontractors are
subject to equivalent obligations of confidentiality as
bind the Customer. | 12.3. |
The Customer will not without
the prior written consent of the Supplier publish or
disclose the Confidential Information to any third party
or make any use of the Confidential Information except
to the extent necessary to implement the Contract. |
13. IPR
13.1. | The Customer will keep the Supplier
indemnified in full against all liability, loss, damage,
injury, claim, action, demand, expense or proceeding in
respect of any infringement or alleged infringement of
any IPR resulting from any use by the Supplier of the
Customers Property or any compliance by the Supplier
with the Customer's instructions, whether express or
implied. | 13.2. | Nothing in these Conditions will be
construed as any representation or warranty by the
Supplier that the design, manufacture, use or sale of
the Works is not an infringement of any third party
intellectual property rights and the Customer
acknowledges that the Supplier only transfers such title
as the Supplier has. |
14. Termination
14.1. |
the Supplier may terminate
the Contract immediately if: 14.1.1. | the Customer fails to pay the price
on the due date; |
14.1.2. |
the Customer is in breach
of any term of the Contract and (where remediable)
has failed to remedy such breach within 28 days of
receipt of written notice specifying the breach
and requiring it to be remedied; |
14.1.3. |
there is a material change
in the ownership or control of the Customer;
or |
14.1.4. |
the Customer is wound up or
becomes insolvent or has a receiver or
administrative receiver appointed or suffers the
appointment or the presentation of a petition for
the appointment of an administration or any
equivalent or analogous event occurs in any
jurisdiction. | |
14.2. |
The termination of the Contract
(howsoever arising) will be without prejudice to any
rights and remedies which may have accrued to either
party. | 14.3. | Any Conditions which expressly or
impliedly have effect after termination or expiry will
continue to be enforceable notwithstanding termination
or expiry. |
15. Export Sales
15.1. | Where the Works are supplied for export
from the United Kingdom the provisions of this Clause 15
will (subject to any special terms agreed in writing
between the parties) apply despite any other provision of
these Conditions. |
15.2. | The Uniform Laws on International
Sales Act 1967 will not apply. | 15.3. | Unless otherwise agreed in writing the
currency will be pounds sterling. The Customer will where
requested by the Supplier establish and maintain in favour
of the Supplier an irrevocable and confirmed letter of
credit in English with a UK clearing bank payable on
drafts drawn at sight on presentation to the bank by the
Supplier of a certified copy of the Supplier's invoice.
All bank charges and other expenses in relation to the
letter of credit will be borne by the Customer. |
15.4. | Unless otherwise agreed in writing
Works will be sold Ex Works (the Supplier’s warehouse in
the UK) (as defined in INCOTERMS 2000 Edition). |
15.5. |
The Customer will be responsible
for complying with any legislation or regulation
governing the export of the Works from the United
Kingdom and the importation of the Works into the
country of destination and for payment of any relevant
duties or taxes. | 16. WEEE Regulations
16.1. | The Customer is responsible under
the WEEE Regulations for the environmentally sound
disposal of EEE when it is discarded as WEEE. |
16.2. | The Supplier may, at its discretion,
offer a "take back" option in relation to WEEE
items, but this will be subject to agreement on a case
by case basis and may incur a charge. |
16.3. | A source of local disposal of WEEE
may be available to the Customer by telephoning 0845 257
7024 or by emailing info@weelight.co.uk,
whereby a free, "no obligations" quotation for
collection and/or disposal may be provided. It should be
noted, however, that the Supplier is not, however,
responsible for this service and shall inherit no
obligations to the Customer in relation to it. |
17. Lien
| The
Supplier will have in respect of unpaid debts due to it
from the Customer a general lien on all property of the
Customer which is in the Supplier's possession for whatever
reason and whether worked upon or not. |
18. Force
Majeure Etc
| the Supplier will not be liable to the
Customer or be deemed to be in breach of these Conditions
by reason of any delay in performing or failure to perform
any of its obligations under these Conditions if such
delay or failure was beyond the Supplier's reasonable
control, was of an unexpected or exceptional nature or if
the duration of the delay is not substantial. If the
Supplier is unable to perform its obligations under these
Conditions in accordance with this Clause 18 it will
promptly notify the Customer of the nature and extent of
the circumstances in question. |
19.
General
19.1. |
The Customer will not without
the prior written consent of the Supplier assign or
transfer the Contract or any part of it to any other
person. | 19.2. | The Supplier may without the prior
written consent of the Customer assign, transfer or
subcontract the Contract or any part of it to any other
person. |
19.3. | Each right or remedy of the Supplier
under these Conditions is without prejudice to any other
right or remedy which the Supplier may have under these
Conditions or otherwise. | 19.4. | Any notice or other document to be
served under the Contract must be in writing and may be
delivered or sent by prepaid first class post or
facsimile transmission. Any notice or document shall be
deemed served, if delivered at the time of delivery, if
posted, 48 hours after posting and if sent by facsimile
transmission, at the time of transmission. |
19.5. | 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, unenforceable or unreasonable it will, to
the extent of such illegality, invalidity, voidness,
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. | 19.6. | Failure or delay by either party in
exercising any right or remedy provided by the Contract or
by law will not be construed as a waiver of such right or
remedy or a waiver of any other right or remedy. |
19.7. | Any waiver by either party of any
breach of, or any default under, any provision of the
Contract by the other party will not be deemed a waiver of
any subsequent breach or default and will in no way affect
the other terms of the Contract. | 19.8. |
A person who is not a party to
the Contract will have no right under the Contracts
(Rights of Third Parties) Act 1999 to enforce any term
of the Contract. This Clause 19.8 does not affect any
right or remedy of any person which exists or is
available otherwise than pursuant to that Act. |
19.9. | The Customer agrees that it will
have no remedy in respect of any untrue statement
innocently or negligently made by or on behalf of the
Supplier prior to the Contract upon which the Customer
relied in entering into the Contract whether such
statement was made orally or in writing. |
19.10. | The Contract will be governed by
English law and the parties submit to the exclusive
jurisdiction of the English courts. |
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