Terms and Conditions for Sale of Goods including Servicing
These Terms and Conditions apply to all sales of Goods or Custom Services
by SouthWestSensor Ltd., (‘SouthWestSensor’) (referred to here as
“Seller”), ordered through the Website and ordered other than through the
Website.
Where you are ordering Goods or Custom Services through the Website and you
tick the box “I have read and accepted the Terms & Conditions” and
thereafter submit your order you will be deemed to accept these Terms and
Conditions.
If you are placing an order on behalf of your company or organization you
are confirming that:
1. your company or organization agrees to these Terms and Conditions; and
2. you are authorized to place the order and agree to these Terms and
Conditions on its behalf, and that you are not exceeding your authority.
If you are placing an order on your own behalf, by sending it to us you are
agreeing to these Terms and Conditions.
In either case you are confirming that you agree to your personal data
being used in accordance with SouthWestSensor Ltd.’s Privacy Policy.
Please read these Terms and Conditions; they are important. If you do not
agree to these Terms and Conditions do not place an order.
1. DEFINITIONS
1.1 In these terms of sale:
(i) “Accepted Order” means an order placed by the Buyer that is accepted by
the Seller in accordance with Clause 3.4 below;
(ii) “Buyer” means the entity that purchases the goods from the Seller;
(iii) “Contract” means any contract formed between the Seller and the
Buyer;
(iv) “Custom Products” means any bespoke product sold and supplied by
SouthWestSensor
(v) “Custom Services” means any service sold and supplied by
SouthWestSensor
(vi) “Delivery” means the point in time when the Goods arrive at the
premises specified in the Accepted Order (or as otherwise agreed in writing
by the Buyer and the Seller);
(vii) “Goods” means the Goods to be sold by the Seller as described in an
Accepted Order and includes Custom Products; and
(viii) “Seller” means SouthWestSensor
(ix) “Servicing” means in-factory conditioning and maintenance of Goods
(x) “Website” the Website identified by the following Uniform Resource
Locator www.southwestsensor.co.uk containing details of and ordering
facilities for the Products and services.
2. APPLICATION OF TERMS
2.1 Unless otherwise agreed in writing and signed by the duly authorised
representatives of the Buyer and the Seller, any contract between the
Seller and the Buyer shall be on these terms of sale to the exclusion of
all other terms of sale including any which the Buyer purports to apply
under any purchase order, confirmation of order, specification or other
document. No variation or addition to these terms of sale shall have effect
unless agreed in writing and signed by a duly authorised representative of
the Seller.
3. ORDERS
3.1 Any quotation provided by the Seller to the Buyer is for information
only and shall not at any time be deemed to be an offer for purchase of the
Goods or Custom Services. Unless otherwise agreed in writing by the Seller,
any quotation provided by the Seller to the Buyer shall expire thirty days
after the date of the quotation, unless otherwise stated on the quotation.
3.2 Each order placed in writing by the Buyer with the Seller and any
purported acceptance in writing of a quotation by the Buyer, shall be
deemed to be an offer by the Buyer to buy the Goods or Custom Services
subject to these terms of sale.
3.3 The Buyer shall ensure that any order it places is complete and
accurate; and shall place each order either: (i) in writing on the Buyer’s
letterhead signed by an authorised signatory, or (ii) by email sent from
the Buyer’s email system, or (iii) by completing the order form on the
Seller’s website, or (iv) by the Website on-line ordering facility. The
order shall include the following information:
3.3.1 purchase order number (unless the Buyer is paying for the order by
credit card);
3.3.2 name, phone number and email address or fax number of the purchasing
officer and any other member of staff that has previously contacted the
Seller with respect to the order;
3.3.3 specific delivery requirements, if any; and
3.3.4 where the Buyer is based in the European Union, the Buyer’s VAT
number or its certificate of VAT exemption.
3.3.5 The website on-line ordering facility requires the Buyer to supply
certain personal information. All orders made other than through the
website must refer to the Seller’s product code mentioned in the catalogue
or on the website, contain contact information and an account number if one
is already assigned to the Buyer.
3.4 No order placed by the Buyer with the Seller shall be deemed to be
accepted by the Seller until, whichever is the earlier of: (i) a written
acknowledgement of the order (whether in physical or electronic form) is
issued by the Seller’s authorised representative to the Buyer, or (ii) the
Seller delivers the Goods or Custom Services.
3.5 The Seller is entitled, at its absolute discretion, to reject without
giving reasons any order placed by the Buyer.
3.6 The Buyer undertakes and warrants that all details provided for the
purpose of placing the order will be correct and that, where credit or
debit cards are used for an order through the Website on-line ordering
facility, that any credit or debit card used belongs to the Customer.
3.7 The Seller’s employees or agents are not authorised to make any
representations concerning the Goods or Custom Services unless confirmed by
the Seller in writing. In entering into the Contract the Buyer acknowledges
that it does not rely on any such representations which are not so
confirmed, but nothing in these terms affects the liability of either party
for fraudulent misrepresentation. Any advice or recommendation given by the
Seller or its employees or agents to the Buyer or its employees or agents
as to the storage, application or use of the Goods or Custom Services which
is not confirmed in writing by the Seller is followed or acted upon
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.
3.8 The Goods and Custom Services are subject to availability. If, on
receipt of order, the Goods or Custom Services ordered are no longer
available the Seller will inform the Buyer as soon as possible and refund
or credit it for any sums that have been paid or debited from the Buyer’s
credit card for the Goods or Custom Services.
4. DELIVERY OF GOODS
4.1 Delivery will be at the address specified by the Buyer at the time the
order is placed, but the Seller may choose the method of delivery suitable
to the Goods being shipped.
4.2 Any dates specified by the Seller for delivering the Goods or Custom
Services are intended to be an estimate only and time shall not be made of
the essence by notice.
4.3 The Seller shall arrange for a delivery company to deliver the Goods to
a location nominated by the Buyer and specified in the Order. The Buyer
shall ensure that necessary access and facilities to facilitate delivery
are provided.
4.4 If for any reason the Buyer fails to provide all necessary access and
facilities to facilitate delivery of the Goods so that delivery is
prevented, the Seller may levy additional charges to recover its costs
arising from the Buyer’s failure to receive delivery.
4.5 The Seller may arrange delivery of the Goods in separate instalments
and each instalment shall be deemed to be a separate Contract.
4.6 The Seller reserves the right to charge for the Goods delivered, even
though some items in an order may not have been delivered.
4.7 For Goods in stock the Seller will use reasonable endeavours to deliver
the Goods within 14 days after the date on which the order was received by
the Seller. The Seller shall not be liable for any loss or damage, direct
or indirect due to any failure or delay in delivery or failure to notify
expected delay.
4.8 Any non-delivery must be notified and confirmed in writing to the
Seller within 21 working days of the date of advice of despatch. Failure to
notify in that time period shall invalidate any claim.
4.9 The Seller reserves the right to deliver pack sizes different from
those ordered.
4.10 Where Goods are collected from the Seller’s premises the Buyer or his
representative must ensure that all statutory requirements relating to the
transport, carriage and handling of the Goods are complied with.
4.11 If the Buyer does not take delivery of the Goods then the Seller may
store the Goods until actual delivery and charge the Buyer for reasonable
costs (including insurance) of storage.
4.12 The Seller shall not be liable for any loss, damage or deterioration
of the Goods during storage.
5. RISK AND TITLE IN GOODS
5.1 All risk in the Goods shall pass to the Buyer on Delivery. Ownership of
the Goods shall not pass until the Seller has received in full (in cleared
funds) all sums due to it in respect of the Goods.
5.2 Notwithstanding Clause 5.1, where the Seller delivers the Goods to the
Buyer, the Seller shall not be liable for any damage or loss in transit
ascertainable upon inspection on Delivery unless the Buyer notifies such
damage or loss to the Seller within 7 days of Delivery.
5.3 Until ownership has passed to the Buyer, the Buyer shall:-
5.3.1 hold the Goods on a fiduciary basis as the Seller´s Bailee;
5.3.2 store the Goods in satisfactory condition and separately in such a
way that it remains readily identifiable; and
5.3.3 keep the Goods insured on the Seller’s behalf for its full price
against all risks to the reasonable satisfaction of the Seller; provided
that the Buyer may use the Goods in the ordinary course of its business.
5.4 Until the Goods are paid for in full, the Buyer´s right to possession
of the Goods shall terminate immediately if any of the events listed in
Clause 14.1 occur. Until the Goods are paid for in full, the Buyer grants
the Seller an irrevocable licence to enter any premises where the Goods are
stored at any time to inspect or recover the Goods.
5.5 If the Buyer who owes money to the Seller for any Goods and/or Services
becomes the subject of any action or procedure in connection with any
actual or impending insolvency, bankruptcy, receivership administration
order or winding up then they must immediately inform the Seller
accordingly and the Buyer must not use, sell or otherwise dispose of any
Goods in which the Seller has retained title but must immediately return
them to the Seller.
6. USE OF THE GOODS AND CUSTOM SERVICES
6.1 Subject to the guidance and warnings set out in this section 6, each of
the Goods to be supplied will be as described under the relevant product
code in the Datasheet for those Goods. Buyers should always obtain the
Product Datasheet from the Website before ordering and will be taken to be
fully aware of all information and warnings in the Datasheet.
6.2 All Goods and Custom Services sold by the Seller are supplied for
research purposes only. The Buyer shall not under any circumstances be
entitled to use the Goods or Custom Services:
6.2.3 as a component of any other product, including a component of a kit.
6.4 Decisions must always be undertaken by a duly qualified operator on the
basis of all appropriate evidence and best practice, not in sole reliance
on sensor data.
6.5 Datasheets provided by the Seller may provide links to published work
on relevant areas of research; these referenced sources should always be
referred to by users for fuller discussion of the techniques described.
6.6 All persons intending to use the Goods or Custom Services must rely on
their own knowledge and judgment in the selection and use of those Goods or
Custom Services.
6.7 Sensors, reagent cartridges and related products have a limited usable
life and require storage and use in controlled conditions. The Seller will
only entertain warranty claims if all relevant guidelines for storage and
use, including all Seller instructions for use, have been followed.
6.8 Buyers are responsible for complying with any legislation or
regulations governing the importation of the Goods or Custom Services into
the territory in which they are to be used.
6.9 The Buyer shall not under any circumstances be entitled to re-sell or
otherwise provide the Goods, or authorise a third party to use, sell and/or
provide the Goods, including as a component of any other product, and/or as
a component of a kit.
6.10 The Buyer shall use and handle the Goods in accordance with applicable
laws, including applicable health and safety regulations. The Buyer and/or
its personnel handling the Goods shall have the appropriate qualification
and training necessary to handle such Goods.
6.11 The Buyer shall compensate the Seller in full for any liabilities,
losses, damages, penalties, costs or expenses of any kind whatsoever
incurred or suffered by the Seller as a result of use of the Goods or
Custom Services by or on behalf of the Buyer in contravention of the
provisions of this Clause 6.
6.12 The Seller’s employees, distributors or agents are not authorized to
make any representations concerning the Goods or Custom Services beyond
those that appear in the Product Datasheet unless confirmed by the Seller
in writing.
6.13 In cases where the Buyer requests the Seller to prepare the Goods in a
non-standard format, the Seller will require that the Buyer completes a
specification sheet detailing their requirements. The Goods will be
prepared according to the details in that specification sheet and will have
passed the Seller’s standard quality control procedures before release. The
Seller cannot accept responsibility for any amended or additional
specifications subsequent to acceptance of the order and failure to meet
any such amended or additional specifications will not be accepted as cause
for rejection of the Goods by the Buyer.
6.14 All Custom Services are accepted and undertaken by SouthWestSensor on
a “reasonable endeavours” basis only. SouthWestSensor cannot and does not
make any representations or give any warranties, whether expressed or
implied, including any warranty of satisfactory quality or fitness for any
particular purpose for any material produced or service provided
6. SERVICING
6.1 In-factory Servicing options may be provided for Goods up to three (3)
years from the date of delivery of the Goods; or at a later stage, at the
full discretion of the Seller.
6.2 Standard Servicing will only cover the reusable electronics part of the
sensor device and excludes the disposable liquid reagent cartridge.
6.3 Standard Servicing will typically include sensor cleaning,
replacement/lubrication of all O-rings, rinsing of microfluidic lines,
calibration of the reconditioned sensor, and firmware updates, if so
required.
6.4 Extended Servicing in case of unexpected repair needs will be
considered but need to be approved in writing. The service center will
endeavour to complete the initial evaluation and send a cost estimate
within 10 days.
6.5 Pricing of Standard Servicing available on request and subject to
change.
6.6 The Seller reserves the right to make changes to the Servicing
provision and may reject s
Servicing requests at its full discretion on a case by case basis.
7. WARRANTIES
7.1 Subject to the provisions of these terms of sale, the Seller warrants
that the Goods or Custom Services shall, on delivery, conform in all
material respects with their description in the Accepted Order and any
applicable specification, data sheets or delivery notes accompanying the
Goods or Custom Services and will be free from defects in material and
workmanship under normal use and service.
7.2 The Seller reserves the right (but does not assume the obligation) to
make any changes in the specification of the Goods which are required to
conform with any applicable legislation or, where the Goods are to be
supplied to the Buyer’s specification, which do not materially adversely
affect their quality or performance.
7.3 The Seller shall not be liable for a breach of the warranty in Clause
7.1 unless:
7.3.1 the Buyer gives written notice of the defect to the Seller within 7
days of the time when the Buyer discovers or ought to have become aware of
the defect; and
7.3.2 The Seller is given a reasonable opportunity to examine such Goods
and the Buyer, at the Seller’s request, returns such Goods to the Seller’s
place of business (or such other place as may be reasonably notified by the
Seller to the Buyer).
7.4 The Seller shall not be liable for a breach of any of the warranty in
Clause 7.1 if:
7.4.1 the Buyer makes any further use of such Goods after discovering the
defect;
7.4.2 the defect arose because of any specification or instructions
supplied by the Buyer;
7.4.3 the defect arose because the Buyer failed to follow the Seller´s
instructions (including instructions with respect to storage), or failed to
follow good practice;
7.4.4 the Buyer modifies such Goods without the written consent of the
Seller;
7.4.5 the defect arose as a result of damage, mishandling, misuse or any
other adverse event occurring after delivery;
7.4.6 the Goods in question are not used within the product expiry as
indicated on the Goods or the accompanying Datasheet.
7.5 This limited warranty shall expire upon the earlier of: (i) The Buyer’s
incorporation of the Goods into other products, or (ii) the expiration date
of the Products set forth in the Data Sheet and/ or Reagent cartridge
labels provided by the Seller with the Products at the time of delivery
(or, if there is no such expiration date, one (1) year from the date of
delivery of the Goods or Custom Services).
7.6 Subject to Clauses 7.2, 7.3, and 7.4, if any of the Goods or Custom
Services do not conform with the warranty set out in Clause 7.1, The Seller
shall, at its option, replace such Goods or Custom Services or refund the
price of such Goods or Custom Services. If the Seller requests that the
Buyer returns the defective Goods, the Buyer shall return the Goods and the
Seller shall pay the Buyer’s reasonable costs for returning the Goods to
the Seller. Except as set out in this Clause 7.6 the Buyer shall have no
right or remedy for a breach of the warranty set out in Clause 7.1 in
respect of such Goods.
7.7 The Buyer undertakes and warrants that all details provided for the
purpose of placing the order will be correct and that, where credit or
debit cards are used for an order through the Website on-line ordering
facility, that any credit or debit card used belongs to the Buyer.
7.8 Subject as expressly provided in these terms and except where the Goods
or Custom Services are sold to a person dealing as a consumer (within the
meaning of the Unfair Contract Terms Act 1977), all warranties, conditions
or other terms implied by statute or common law are excluded to the fullest
extent permitted by law. Where the Goods or Custom Services are sold under
a consumer transaction (as defined by the Consumer Transactions
(Restrictions on Statements) Order 1976) the statutory rights of the Buyer
are not affected by these terms, including the right to cancel the contract
within 14 days of receiving the Goods.
7.9 Except in respect of death or personal injury caused by the Seller’s
negligence, or liability for defective products under the Consumer
Protection Act 1987, the Seller shall not be liable to the Buyer by reason
of any representation (unless fraudulent), or any implied warranty,
condition or other term, or any duty at common law, or under the express
terms of the Contract, for loss of profit or for any indirect, special or
consequential loss or damage, costs, expenses or other claims for
compensation whatsoever (whether caused by the negligence of the Seller,
its employees or agents or otherwise) which arise out of or in connection
with the supply of the Goods or Custom Services (including any delay in
supplying or any failure to supply the Goods or Custom Services in
accordance with the Contract) or their use or resale by the Buyer and the
entire liability of the Seller under or in connection with the Contract
shall not exceed the price of the Goods or Custom Services, except as
expressly provided in these terms.
8. PRICES AND PAYMENT
8.1 The price for the Goods or Custom Services shall be the price set out
in the Accepted Order or, if no price is quoted in the Accepted Order, the
price set out in the Seller´s price list that is in force on the date of
the Accepted Order.
8.2 The prices quoted on the Website do not include packing and carriage
charges or insurance and are exclusive of VAT and all other taxes and
duties.
8.3 The Buyer will pay VAT in accordance with applicable legislation and
all other taxes, duties and carriage charges payable in connection with the
supply of the Products and their export and import into any territory.
8.4 The Seller reserves the right to charge extra in relation to packaging,
loading, unloading, carriage and insurance but may, at its discretion,
waive such additional charges. In such circumstances the Seller will give
the Buyer an estimate of the packing charge on receipt of the Order.
8.5 Prices on the website are shown for standard package sizes. The Seller
will supply the Buyer with prices for quantities outside those listed in
the Catalogue, or on the website, on request.
8.6 If the Buyer is not VAT registered or is unable to provide the Seller
with a valid VAT number, the Seller shall charge the Buyer VAT at the VAT
rate in force in the UK at the date of the Accepted Order. The Seller shall
not charge the Buyer any VAT where the Buyer is based within the UK but is
exempt from paying VAT, provided that the Buyer has submitted to the Seller
a valid exemption certificate with its order. For Buyers outside the EU, UK
VAT will not be charged but the Buyer has responsibility to ensure that
VAT, import taxes and duties in the destination country are paid by the
Buyer where necessary, and follow local requirements for transport
procedures.
8.7 All payments shall be made in pounds sterling, but the currency used
must be the currency denominated on the invoice, or displayed on the
website.
8.8 The Seller may, by giving notice to the Buyer at any time before
Delivery, increase the price of Goods or Custom Services to reflect any
increase in the cost of the Goods or Custom Services that is due to any
factor beyond the Seller’s control (including foreign exchange
fluctuations, increases in taxes and duties, and increases in labour,
materials and other manufacturing costs or in prices charged by its
suppliers).
8.9 For Buyers holding a credit account with the Seller, or otherwise
approved by the Seller, payment in full shall be made within thirty days of
the date of invoice, unless agreed in writing otherwise. For other Buyers,
remittance of the order amount in full must accompany orders. Time for
payment shall be of the essence of the Contract.
8.10 If the Buyer fails to pay the Seller any sum due, without prejudice to
any other right or remedy available to the Seller, the Buyer shall pay
interest to the Seller on such sum at the statutory rate for late payments
from the due date for payment, until payment is made in full, whether
before or after any judgment.
8.11 The Seller reserves the right to amend prices and specifications for
the Products without notice, but not with effect for Contracts which have
been concluded on the basis of prices and/or specifications.
9. CANCELLATION
9.1 As sensor, reagent cartridges and related products have a limited
usable life and require storage and use in controlled conditions, orders
for these products may only be cancelled with the written consent of a
Company Director of the Seller and the Seller reserves the right to make a
charge for any costs or loss incurred.
9.2 Due to the bespoke nature of Custom Products and Custom Services;
Buyers may not cancel or change an order of these once placed with the
Seller except with the prior written consent of the Seller and upon terms
that will indemnify the Seller against any loss resulting from such change
or cancellation. All orders and Goods and Custom Services are subject to
changes as may be required to comply with applicable laws. Should a
cancellation be agreed, the Seller will process the refund within 10
working days of the agreement.
10. RETURNS
10.1 This Clause 10 does NOT apply to the Custom Products.
10.2 Upon the Buyer’s receipt of Goods shipped hereunder, the Buyer shall
inspect the Goods and notify the Seller of any claims for shortages,
defects or damages. If the Buyer fails to so notify us in writing or email
within 7 working days after the Buyer receives the Goods, the Goods shall
conclusively be deemed to conform to these conditions and to have been
irrevocably accepted by the Buyer.
10.3 Authorisation for Goods returns must be approved by the Seller prior
to the return of Goods. Not all items will be authorised for return due to
temperature and packing requirements. Items authorised for return must
arrive at our facilities in a state satisfactory for resale to be eligible
for a refund, instructions on how to return the Goods will be provided by
the Seller.
10.4 Shipping charges will not be refunded, the Buyer has to pay for
postage at their own expense.
10.5 Goods may not be returned for refund after 14 working days after the
Buyers’ receipt of the Goods.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 All intellectual property and other proprietary rights (including but
not limited to trademarks and copyright) and all technical business or
similar information (including but not limited to all designs, documents
and other materials relating to the Goods or Custom Services) created by
the Seller during the course of the Order shall be and shall remain the
property of the Seller.
11.2 All intellectual property and other proprietary rights (including but
not limited to trademarks and copyright) and all technical business or
similar information (including but not limited to all specifications,
designs, documents and other materials) supplied by the Buyer shall remain
the property of the Buyer.
12. EXPORT
12.1 Where the Goods or Custom Services are exported, the Buyer shall be
responsible for complying with any legislation governing:
12.1.1 the export of the Goods or Custom Services from the country of
manufacture;
12.1.2 the import of the Goods or Custom Services into the country of
destination;
12.1.3 and shall be responsible for the payment of any duties on it
12.2 The Buyer shall where applicable: (i) not, either directly or
indirectly, export the Goods or Custom Services or any other product
incorporating the Goods without first obtaining a license to export or
re-export from the United Kingdom Government, (ii) comply with the export
regulations of the United Kingdom Government.
12.3 The Buyer shall not offer the Goods or Custom Services for resale in
any country if the laws of the United Kingdom prohibit the supply of such
Goods or Custom Services to such country, or to sell the Goods or Custom
Services to any person if the Buyer knows, or has reason to believe that,
that person intends to resell the Goods or Custom Services in any such
country.
13. CUSTOM SERVICES AND PRODUCTS
13.1 The Buyer will be deemed to have provided and to be responsible for
all designs, plans and specifications with respect to Custom Products and
Custom Services (collectively, “Designs”). If The Seller makes suggestions
with respect to the Designs, at the Buyer’s request or otherwise, the Buyer
will be responsible for analysing the same and determining whether to
incorporate them into the Designs.
13.2 If the Buyer desires to change any aspect of the Designs, the Buyer
will submit a written change order to the Seller specifying in detail the
changes it wishes to make, and the Seller may accept or reject the
requested changes in its sole discretion. If the Seller agrees in writing
to make the changes the Buyer requests, the Buyer will pay all costs of
making the changes, including the costs of obsolete materials or of
replacing obsolete materials with newly specified materials.
13.3 Subject to Clauses 7, 13.1 and 13.2 above, the Seller warrants to the
Buyer that at the time of delivery, the Custom Products will be
manufactured in accordance with the Designs specified in the applicable the
Seller order confirmation.
13.4 The Buyer represents and warrants to the Seller, with respect to all
current and future Designs, as follows: (i) The Buyer has the right to
design, manufacture, and use Custom Products made pursuant to those
Designs, (ii) The Seller’s manufacturing the Custom Products for the Buyer
pursuant to those Designs will not infringe on, violate or misappropriate
any patent, trade secret, copyright, trademark, or other intellectual
property or proprietary right; (iii) there are no defects or dangers,
latent or otherwise, with respect to the Buyer’s Designs; and (iv) the
Custom Products, when the Seller manufactures them pursuant to those
Designs, will comply with all applicable laws, rules and regulations.
13.5 The Buyer will indemnify, defend and hold harmless the Seller and its
affiliates, directors, officers, employees and agents from and against any
and all claims, damages, losses, fines, costs, and legal fees and expenses
arising out of or relating to (i) the Designs, (ii) any alleged negligence
with respect to the Custom Products or misuse of the Custom Products after
the sale and delivery of the Products to The Buyer, (iii) any claim that
the Custom Products or the Designs infringe on, violate or misappropriate
any patent, trade secret, copyright, trademark or other intellectual
property or proprietary right, or (iv) The Buyer’s breach of its express
warranties in Section 13.14 above. If the Seller requests, the Buyer shall
defend the Seller, at the Buyer’s expense, in any indemnifiable claim
brought against the Seller.
13.6 The Seller markets Goods which are intended for use only by or under
the supervision of suitably qualified persons. Goods are supplied as being
of the kind and quality ordered but are not otherwise sold as being
suitable for any particular application. Where it is proposed to transport,
use or store Goods supplied by the Seller in any application or manner
which may involve the possibility of danger to persons or property, it is
the responsibility of the Buyer to establish by testing or otherwise that
the Goods are suitable for such transport, use or storage and that adequate
safety precautions are taken. The Seller shall incur no liability
whatsoever for injury or loss of any description including consequential or
contingent loss or damage arising directly or indirectly from use of Goods
supplied by the Seller or its agents except where such liability is a
statutory requirement.
13.7 No warranty is given that the use or sale of the Goods will not cause
the Buyer or his agent to infringe any letters patent, copyright,
registered design, trade mark, trade name or intellectual property rights
and The Seller has no liability whatever to the Buyer in this connection.
13.8 In the case of certain Goods, orders must be signed by the Buyer who
must state his name address.
14. TERMINATION
14.1 The Seller may (without prejudice to any other rights or remedy)
terminate any Contract by notice to take immediate effect if any of the
following events occur in respect of the Buyer:-
14.1.1 the Buyer makes or offers to make any arrangement or composition
with or for the benefit of its creditors (including any voluntary
arrangement);
14.1.2 the Buyer ceases or threatens to cease to carry on business or
suspends or threatens to suspend all or substantially all of its operations
or suspends payments of its debts or becomes unable to pay its debts
(within the meaning of Section 123 of the Insolvency Act 1986 where
applicable) or commits any act of insolvency or bankruptcy;
14.1.3 the Buyer files a petition or resolution for winding up or
bankruptcy or makes an application for the administration of the Buyer;
14.1.4 the Buyer files a voluntary petition in bankruptcy or insolvency; or
a liquidator, trustee, supervisor, receiver, administrator, administrative
receiver or encumbrancer takes possession of or is appointed over the whole
or any part of the assets of the Buyer;
14.1.5 the Buyer takes any other step (including application, petition,
proposal or convening a meeting) that is taken with a view to the
rehabilitation, administration, custodianship, liquidation, winding-up,
bankruptcy or dissolution of the Buyer.
14.2 The Seller may suspend or terminate any Contract if:
14.2.1 the Buyer has not paid by the due date any invoice issued to it by
the Seller under any other contract between the parties;
14.2.2 the Buyer fails to comply with the provisions of Clause 12.
14.3 On termination of any Contract for any reason:-
14.3.1 any rights or remedies of either party arising from any breach of
the Contract shall continue to be enforceable;
14.3.2 the Buyer shall pay to the Seller all sums due to the Seller under
the Contract within 30 days of the date of the invoice for such sums issued
by the Seller;
14.3.3 Clauses 14.3, 15.2, and 16.3 shall continue in full force and
effect.
15. LIABILITY
15.1 Subject to Clause 7, the following provisions set out the entire
liability of the Seller to the Buyer in respect of:
15.1.1 any breach of these terms of sale or any Contract;
15.1.2 any use made or resale of any of the Goods or Custom Services, or of
any product incorporating any of the Goods; and
15.1.3 any representation, statement or tortious act or omission including
negligence arising under or in connection with the Contract.
15.2 Nothing in these terms of sale shall exclude or limit the liability of
either party:
15.2.1 for death or personal injury caused by that party’s negligence; or
15.2.2 for fraud or fraudulent misrepresentation; or
15.2.3 in respect of any other matter which cannot by law be excluded or
limited.
15.3 The Seller provides no warranty whatsoever that the Goods or Custom
Services it supplies to the Buyer infringe or may infringe the intellectual
property rights of a third party.
15.4 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.
15.5 Subject to Clause 15.2, the parties acknowledge that in entering into
any Contract they do not rely on any statement, promise, representation
(whether made negligently or otherwise), warranty, course of dealing,
custom or understanding except for those expressly set out in these Terms
and Conditions and the parties irrevocably and unconditionally waive any
right and/or remedies they may have in respect of any misrepresentation,
negligent misrepresentation or misstatement other than ones which are
expressly set out in these Terms and Conditions.
15.6 Subject to Clause 15.2:
15.6.1 The Seller´s total liability in contract, tort (including negligence
and breach of statutory duty), misrepresentation, restitution or otherwise,
arising out of or in connection with the Goods or Custom Services and/or
the performance or contemplated performance of the Contract shall be
limited to the price payable for the Goods or Custom Services, under the
Accepted Order;
15.6.2 The Seller shall not be liable for any loss (whether direct,
indirect or consequential), costs, damages, charges or expenses caused by
any delay in delivering, even if caused by the Seller´s negligence. Any
liability of the Seller for failing to deliver shall be limited to
delivering or making the Goods or Custom Services available within a
reasonable time or issuing a credit note at the pro rata price payable for
the Goods or Custom Services, under the Accepted Order against any invoice
raised for such Goods or Custom Services;
15.6.3 The Seller shall not be liable to the Buyer for any loss (whether
direct, indirect or consequential), costs, damages, charges or expenses
caused by use of the Goods or Custom Services by or on behalf of the Buyer
in contravention of the provisions of this Clause 15; and
15.6.4 The Seller shall not be liable for any economic loss, loss of
profit, loss of business, depletion of goodwill, loss of anticipated
savings; loss of goods; loss of contract; loss of use (in each case whether
direct, indirect or consequential), or for any indirect or consequential
loss whatsoever and howsoever caused which arises out of or in connection
with the Contract.
15.7 The Seller shall not be liable for any failure or delay in performance
of its obligations under any Contract which is caused by circumstances
beyond its reasonable control. If The Seller is unable to perform any of
its obligations for a period of more than 120 days after the commencement
of such circumstances then the Buyer may terminate that Contract by written
notice to the Seller.
16. GENERAL
16.1 The Buyer shall keep and ensure that it and its staff keep in strict
confidence all technical or commercial know-how, specifications, inventions
or processes which are of a confidential nature or any other confidential
information disclosed by the Seller.
16.2 Any goods, drawings, specifications and data or any other materials
supplied by the Seller (other than any Goods sold to the Buyer) shall be
and remain the exclusive property of the Seller, but shall be held by the
Buyer in safe custody until returned to the Seller, and shall not be used
other than in accordance with the Seller’s written instructions.
16.3 All notices shall be given in writing and delivered by first class
post, by hand, or by courier to the registered office of the recipient or
to the address of the recipient, as may from time to time be provided to
the other party in writing.
16.4 Failure or delay by the Seller to exercise any right or remedy under
these terms of sale shall not be deemed a waiver of it, or prevent the
Seller from exercising it on any occasion.
16.5 The Seller may assign and sub-contract the Contract or any part of it.
The Buyer shall not be entitled to assign the Contract or any part of it
without the prior written consent of the Seller.
16.6 The Buyer shall not act or describe itself as the agent of the Seller
nor shall the Buyer have or represent that it has any authority to make
commitments on behalf of the other.
16.7 The Seller does not grant the Buyer by implication, estoppels or
otherwise, any right, title, licence or interest in any intellectual
property rights of the Seller or any affiliate of the Seller provided that
the Buyer shall be entitled to use the Goods and Custom Services supplied
by the Seller for the purposes set out in Clause 6 and 13 respectively.
16.8 The Seller reserves the right to make changes to these terms of sale
at any time. Any amended terms of sale shall be effective from the date
specified on the amended terms of sale.
16.9 If any of these terms of sale are deemed invalid, void, or for any
reason unenforceable, that term or condition will be deemed severable and
will not affect the validity and enforceability of any remaining terms of
sale.
16.10 The Contracts (Rights of Third Parties) Act 1999 shall not apply in
relation to these terms of sale.
16.11 English law shall govern the formation, validity, interpretation and
performance of any Contract and the parties submit to the exclusive
jurisdiction of the English courts, except that the Seller shall have the
right to seek payment of any sums due under a Contract in any foreign
court.
16.12 Nothing in these conditions shall be construed as excluding or
restricting any statutory liability or rights which under law must not be
so excluded or restricted.
16.13 These terms and conditions of supply prevail over any terms and
conditions attached to the purchase order.