Terms and Conditions
In these conditions the following terms apply:-
Buyer – means the company, person, firm or organisation who accepts a quotation from the Seller for the sale of the goods or whose order for the goods is accepted by the Seller.
Goods – means the goods, including any instalments of the goods or any part of them, which the Seller is to supply in accordance with these conditions.
Seller – means Eldapoint Ltd, Charleywood Road, Knowsley Industrial Park North, Merseyside, L33 7SG.
Conditions – means the standard Terms and Conditions of Sale set out in this document plus any other Terms and Conditions agreed in writing between the Buyer and the Seller.
Contract – means the contract for purchase and sale of the goods.
Writing – means letter, telex, e-mail or facsimile.
Any reference in these conditions to any provision of a statue shall be construed as a reference to that provision as amend re-enacted or extended at the relevant time.
The headings in those conditions are for convenience only and should not affect their interpretation.
B. Basis of the Sale
The Seller shall sell and the Buyer shall purchase the goods subject to these conditions which shall govern the contract to the exclusion of all other terms and conditions [save any conditions specified in writing on an invoice issued by the Seller prior to delivery of the goods or agreed pursuant to clause B.ii hereof]
No variation to these conditions shall be binding unless agreed in writing between the authorized representatives of the Buyer and Seller.
The Seller’s employees or agents are not authorized to make any representations concerning the goods unless confirmed by the Seller in writing. In entering into the contract the Buyer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed.
Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to storage applications or use of the goods which is not confirmed in writing by the Seller is followed or acted entirely at the Buyer’s own risk and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
Any typographical clerical or other error or omission in any sales literature, quotation, price, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
C. Price of the Goods
The price of the goods shall be the Seller’s quoted price or where no price has been quoted [or a quoted price is no longer valid] the price list in the Seller’s published price list current at the date of acceptance of the order. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer after which time they may be altered by the Seller without giving notice to the Buyer.
The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the goods to reflect any increase in the costs to the Seller which is due to any factor beyond the control of the Seller [such as without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the cost of labour, materials or other costs of manufacture] or any change in delivery times or dates, quantities or specifications for the goods which is requested by the Buyer or any delay caused by instructions of the Buyer or any change in the Seller’s loading schedules or failure of the Buyer to give the Seller adequate information or instructions.
Except as otherwise stated under the terms of any quotation or in any price list of the Seller and unless otherwise agree in writing between the Buyer and the Seller all prices are given by the Seller on an ex-works basis and where the Seller agrees to deliver the goods other than at the Seller’s premises the Buyer shall be liable to pay the Seller’s charges for transport packaging and insurance.
The price is exclusive of any applicable Value Added Tax which the Buyer shall be additionally liable to pay to the Seller and any other applicable tax which is from time to time in force.
D. Terms of Payment
Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer when accepting the Buyer’s offer to enter into the contract or at any time thereafter.
The Buyer shall pay the price of the goods forthwith upon receipt of the Seller’s invoice not withstanding that delivery may not have taken place and the property in the goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the contract. Receipts for payments will be issued only upon request.
No payment maybe withheld by the Buyer for any reason whatsoever nor may any counter claim of the Buyer be set off against any payment due to the Seller without the prior written consent of the Seller.
The Seller shall have a general and particular lien over any property of the Buyer in its possession in respect of any monies due to the Seller from the Buyer from time to time.
If the Buyer fails to make any payment on the due date then without prejudice to any other right or remedy available to the Seller the Seller shall be entitled to:
Cancel the contract or suspend any further deliveries to the Buyer;
Appropriate any payment made by the Buyer to such of the goods [or the goods supplied under any other contract between the Buyer and the Seller] as the Seller may think fit [not withstanding any purported appropriation by the Buyer]; and
Charge the Buyer interest [both before and after any judgment] on the amount unpaid at the rate of 4% per annum above Bank of England base rate from time to time until payment in full is made. [A part of a month being treated as a full month for the purpose of calculating interest.]
Payment terms strictly 30 days from date of our invoice, any deviation of these terms must be agreed in writing only.
E. Order and Specification
No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’s authorised representative
The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order [including any applicable specification] submitted by the Buyer.
The quantity, quality and description of any specification for the goods shall be those set out in the Seller’s invoice or delivery note [whichever shall be issued to the Buyer earliest in time]
If the good are to be manufactured or any process is to be applied to the goods by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent copyright, design trademark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
The Seller reserves the right to make any changes in the specification of the goods which are required to conform with any applicable safety or other statutory requirements or where the goods are to be supplied to the Seller’s specification which do not materially affect their quality or performance.
No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss,.[Including loss of profit] liabilities actions costs [including the cost of all labour and materials used] damages fines charges and expenses incurred by the Seller as a result of cancellation including any consequential loss and [by way of example and without limitation] any costs of storage or any damages which the Seller must pay to suppliers with whom the Seller has contracted in furtherance of the performance of the contract.
Delivery of the goods shall be made Ex works (EXW Incoterms 2010) unless some other place for delivery is agreed between parties in writing.
Any dates quoted for delivery of the goods are approximate only and the Seller shall not be liable for any delay in delivery of the goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
Where the goods are to be delivered in installments each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the installments in accordance with these conditions or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat the contract as a whole as repudiated.
If the Seller fails to deliver the goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault and the Seller is accordingly liable to the Buyer the Seller’s liability shall be limited to the excess [if any] of the cost to the Buyer [in the cheapest available market] of similar goods to replace those not delivered over the price of the goods.
If the Buyer refuses to accept the goods upon delivery by the Seller the Seller may store the goods until actual delivery [or sale in accordance with clause 6.5.1] and charge the Buyer for the reasonable costs [including insurance] of storage [and for this purpose the space occupied by the stored goods and the Seller’s current commercial storage charging rates, if any, shall be taken into account in determining the reasonable costs of storage] and
Sell the goods at the best price readily obtainable and [after deducting all reasonable costs 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.
G. Risk and Property
Risk of damage to or loss of the goods shall pass to the Buyer:
In the case of goods to be delivered otherwise than at the Seller’s premises at the time of delivery or if the Buyer wrongfully fails to take delivery of the goods the time when the Seller has tendered delivery of the goods.
Notwithstanding delivery and the passing of risk in the goods or any other provision of these conditions the property in the goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
Until such time as the property in the goods passes to the Buyer the Buyer shall hold the goods as the Seller’s fiduciary agent and bailee and shall keep the good separate from those of the Buyer and third parties and properly stored protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resale or use the goods in the ordinary course of its business but shall account to the Seller for the proceeds of the sale or otherwise of the goods whether tangible or intangible including insurance proceeds and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and in the case of tangible proceeds properly stored protected and insured.
Until such time as the property in the goods passes to the Buyer [and provided the goods are still in existence and have not been resold] the Seller shall be entitled at any time to require the Buyer to deliver up the goods to the Seller and if the Buyer fails to do so forthwith to enter upon any premises of the Buyer or any third party where the goods are stored and repossess the goods.
The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of the Seller but if the Buyer does so all monies owning by the Buyer to the Seller shall [without prejudice to any other right or remedy of the Seller] forthwith become due and payable.
H. Insolvency of the Buyer
This clause applies if:
The Buyer makes any voluntary arrangement with its creditors or becomes subject to any administration order or [being and individual or firm] becomes bankrupt or [being a company] goes into liquidation [otherwise than for the purpose of amalgamation or reconstruction]; or
An encumbrance takes possession or a receiver is appointed or any of the property or assets of the Buyer; or
The Buyer ceases or threatens to cease to carry on business or
The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly; if this clause applies then without prejudice to any other right to remedy to the Seller, the Seller shall be entitled to cancel the contract or suspend any further deliveries under the contract without any liability to the Buyer and if the goods have been delivered but not paid for the price shall become immediately due and payable not withstanding any previous agreement or arrangements to the contrary.
I. Warranties and Liabilities
Subject to the conditions set out below the Seller warrants that the goods will correspond at the time of delivery with the specifications [if any] agreed in writing between the Seller and the Buyer and will be free from defects both material and workmanship for a period of 12 months from date of delivery.
The above warranty is given by the Seller subject to the following conditions:
The Seller shall be under no liability in respect of any defect in the goods arising from any drawing design or specification supplied by the Buyer;
The Seller shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions [whether oral or in writing] misuse or alteration or repair of the goods without the Seller’s approval;
The Seller shall be under no liability under the above warranty [or any other warranty condition or guarantee] if the total price for the goods has not been paid by the due date for payment.
The above warranty does not extend to parts materials or equipment not manufactured by the Seller in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee is given by the manufacturer to the Seller.
The Buyer shall indemnify the Seller and hold the Seller harmless from and against all losses [whether direct or consequential] liabilities, claims. actions, damages, demands, fines, costs and expenses incurred by the Seller arising out of the use of misuse [whether deliberate, accidental or hazardous] of the goods by or on behalf of the Seller.
Subject as expressly provided in these conditions and except where the goods are sold to a person dealing as a consumer [within the meaning of the Unfair Contract Terms Act 1997] all warranties conditions or other terms implied by statue or common law are excluded to the fullest extent permitted by law.
The Buyer shall check the goods thoroughly forthwith upon delivery and any claim by the Buyer which is based in any defect in the quality or condition of the goods or their failure to correspond with specification shall [whether or not delivery is refused by the Buyer] be notified to the Seller within 7 days of the date of delivery or [where the defect or failure was not apparent on reasonable inspection] within a reasonable time after discovery of the defects or failure. If delivery is not refused and the Buyer does not notify the Seller accordingly the Buyer shall not be entitled to reject the goods and the Seller shall have no liability for such defect or failure and the Buyer shall be bound to pay the price as if the goods had been delivered in accordance with the contract.
Where any valid claim in respect of any of the goods which is based on any defect in the quality or condition of the goods or their failure to meet specification is notified to the Seller in accordance with these conditions the Seller shall be entitle to replace the goods [or the part in question] free of charge or at the Seller’s sole discretion refund to the Buyer the prices of the goods [or a proportionate part of the price] but the Seller shall have no further liability to the Buyer whatsoever.
Except in respect of death or personal injury caused by the Seller’s negligence the Seller shall not be liable to the Buyer by reason of any representation or any implied warranty condition or other term or any duty at common law or under the express terms of the contract for any consequential loss or damage [ whether for loss of profit or otherwise] costs, fines, actions, liabilities, expenses or other claims for consequential compensation whatsoever [and whether caused by the negligence of the Seller its employees or agents or otherwise] which arise out of in connection with the supply of the goods or their use or resale by the Buyer except as expressly provided in these conditions.
The Seller shall not be liable to the Buyer or be deemed to be in breach of the contract by reason of any delay in performing or any failure to perform any of the Seller’s obligations in relation to the goods if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the Seller’s reasonable control;
Act of God, explosion, flood, tempest, fire or accident;
War or threat of war, sabotage, insurrection, civil disturbance or requisition;
Acts restrictions regulations bylaws prohibitions or measures of any kind on the part of any governmental parliamentary or local authority;
Import or Export regulations or embargoes;
Strikes lock outs or other industrial actions or trade disputes [whether involving employees of the Seller or a third party]
Difficulties in obtaining raw materials labour fuel parts or machinery.
Power failure or breakdown of machinery.
Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
No waive by the Seller of any breach of the contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected thereby.
The contract shall be governed by the laws of England.