1. DEFINITIONS AND EXPLANATION
1.1 In these conditions:
'Buyer' means the person who accepts a quotation for the sale of the Goods or whose order for the Goods is accepted by the Seller;
'Conditions' means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Buyer and the Seller;
'Contract' means the contract for the purchase and sale of the Goods;
'Goods' means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions;
'Statutory rate of interest applying to late payment' means the current rate of interest chargeable under the Late Payment of Commercial Debts (Interest) Act 1998 (the ‘Act’) including any statutory modification or re-enactment thereof and statutory instruments made under the Act;
'Seller' means Ceetak Limited, a private company registered in England and Wales under company number 02251723, whose registered office is at Fraser Road, Priory Business Park, Bedford, MK44 3WH; and/or any of its subsidiaries or subsidiary undertakings as defined by Companies Act 2006;
'Writing' includes, but is not limited to, facsimile, e-mail and electronic transmission and comparable means of communication.
1.2. Any reference in these Conditions to any provision of a statute or statutory instrument shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3. The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. BASIS OF THE SALE
2.1 The Seller shall sell and the Buyer shall purchase the goods in accordance with the written purchase order of the Buyer, which is accepted by the Seller, by the issue of a purchase acknowledgement. No contract will arise between the Buyer and the Seller until such purchase acknowledgement is issued or when the Seller commences work on delivery of the Goods. Unless otherwise agreed in Writing, all goods are supplied to the Conditions, which shall govern the Contract to the exclusion of any other terms and conditions. It is a condition of this Contract and the supply of Goods that any Goods supplied by the Seller must not in any circumstances be used where their failure could endanger life.
2.2 No variation to these conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and of the Seller.
2.3 The Seller's employees or agents are not authorised to make any representations concerning the Goods unless confirmed by a Director of 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.
2.4. 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 which is not confirmed in Writing by a Director of the Seller is followed or acted upon entirely at the Buyers own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5. Any typographical, clerical or other error or omission in sales literature, quotation, price list, acceptance of offer, invoice or other document of information issued by the Seller shall be subject to correction without any liability on the part of the Seller. Any samples, drawings, descriptive matter or advertising issued by the Seller, and any descriptions or illustrations contained in the Seller’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6. Recommendations on application design and material selection are based on available technical information, and are offered as suggestions only. The Buyer should make their own tests to determine the suitability for their own particular application. The Seller offers no express or complied warranties concerning the form, fit or function of a product in any application.
2.7. All industrial or intellectual property rights of any nature whatsoever in the Goods remain vested in the Seller at all times.
3. ORDERS AND SPECIFICATIONS
3.1 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, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its items.
3.2. The quantity and description of and any specification for the Goods shall be those set out in the Seller's purchase acknowledgment, unless otherwise agreed in Writing.3.3.If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, or utilising tooling, software or other goods or equipment supplied by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred 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, trade mark or other industrial or intellectual property rights of any other person which results from the Seller's use of the Buyer's specification or use of such tooling, software or other goods or equipment.
3.4. 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.
3.5. Save as set out in Clause 4 below 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) costs (including the cost of all labour and materials used) damages, charges and expenses incurred by the Seller as a result of cancellation.
4. PRICE OF THE GOODS
4.1. The price of the goods shall be as per the Seller's purchase acknowledgement. All prices quoted in any quotation are valid for 30 days after which time they may be altered by the Seller on giving notice to the Buyer.
4.2. 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 cost 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 costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3. Except as otherwise stated under the terms of any quotation or in any price list to the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on and ex-works basis, and where the Seller agrees to deliver the Goods, the Buyer shall be liable to pay the Seller's charges for transport, packaging and insurance.
4.4. The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
5. TERMS OF PAYMENT
5.1. The Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2. The Buyer shall pay the price of the Goods within 30 days after the date of the Seller's invoice, and time for the payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request. The Buyer shall not make any deductions, set-offs or counterclaims against the invoice price.
5.3. 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:
5.3.1. cancel the contract or suspend any further deliveries to the Buyer;
5.3.2. 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 (notwithstanding any purported appropriation by the Buyer); and
5.3.3. charge interest on the outstanding amount (both before and after any judgment) at the Statutory rate of interest applying to late payment from the due date until the outstanding amount is paid in full (a part of a month being treated as a full month for the purpose of calculating interest)
6.1. Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller's premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, of some other place for delivery as agreed by the Seller, by the Seller delivering the Goods to that place. Delivery is completed on the completion of unloading of the Goods at the delivery location.
6.2. 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.
6.3. Where delivery of the Goods is to be made by the Seller in bulk, the Seller reserves the right to deliver up to 2.5 per cent more or 2.5 per cent less that the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed the quantity ordered and the Buyer shall not reject the delivery.
6.4. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated. Each contract to supply Goods is divisible and each delivery made hereunder shall be deemed to arise from a separate contract, and shall be payable in full in accordance with the terms of payment provided for herein without reference to and notwithstanding any defect or default in the delivery of any other contract or instalment due under the same contract with the Buyer.6.5. 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 ordering similar goods to replace those not delivered over the price of the Goods.
6.6. If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller's Default under these Conditions) then, without prejudice to any other right or remedy which the Seller may have, the Seller may;
6.6.1. store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.6.2. sell the Goods at the best price readily obtainable (after deducting all reasonable storage and selling expenses) and account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
6.7. If delivery is delayed by industrial dispute or any circumstances beyond the Seller's control then the periods for delivery shall be extended by such a period as is reasonable in the circumstances. Should any delay continue for a period exceeding six months then, unless the parties agree to the contrary, the contract shall be deemed to be terminated without any claim for compensation against the Seller.
6.8. If the Buyer orders customised Goods to their own specification and the Buyer fails to take delivery of those customised Goods for whatever reason otherwise than by reason of any cause beyond the Buyer's control or by reason of the Seller's default under these Conditions, then the full price of those Goods becomes payable by the Buyer.
6.9. The Seller will accept scheduled or call off orders based on delivery over a maximum period 12 months unless otherwise agreed in Writing.
7. RISK AND PROPERTY
7.1. Risk of damage to or loss of the Goods shall pass to the Buyer;
7.1.1. in the case of Goods to be delivered at the Seller's premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
7.1.2. in the case of Goods to be delivered otherwise that 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.
7.2. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the title to 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.
7.3. Until such time as the title on the Goods passes to the Buyer shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller's property. The Buyer shall not remove, deface or obscure any mark or packing on or relating to the Goods and the Buyer shall maintain the Goods in satisfactory condition.
7.4. Until such time as the title in the Goods passes to the Buyer, the Buyer shall be, subject to the Seller informing the Buyer to the contrary, entitled to resell or use the Goods on the ordinary course of business as principal and not as the Seller’s agent, but shall account the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured. The Buyer shall have no authority to enter into any contract of sale on behalf of the Seller and any such contract shall accordingly be concluded in the name of the Buyer.
7.5. Until such time as the title 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.
7.6. 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 moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
7.7. Save as otherwise stated therein, the provisions of this clause 7 shall survive the termination of any contract made pursuant to these conditions for whatever reason and in particular but without limitations by the Seller by the acceptance or repudiation of this Contract by the Buyer.
8. WARRANTIES AND LIABILITY
The Price of Goods is based, in part, on the limits on the Seller's liability in these Conditions. The Buyer's attention is drawn in particular to conditions 8.1. to 8.8. (inclusive). In setting these limits the Seller has had regard to its insurance cover, copies of which are available on request. The Buyer should make its own insurance arrangements for risks falling outside the scope of this cover.
8.1. Subject to the conditions set out below, in relation to such of the Goods as are manufactured by the Seller the Seller warrants that they will correspond with their specification as set out in the order acknowledgement at the time of delivery and will be free from material defects in material and workmanship for a period of six months from the date of delivery to the Buyer, and in relation to such of the Goods that are not manufactured by the Seller, the Buyer shall be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller to the extent that the Seller is able to pass such warranty or guarantee on to the Buyer.
8.2. The above warranty and/or entitlement is given by the Seller subject to the following conditions:
8.2.1. 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 or where the Goods have been used in circumstances where their failure could directly endanger life in breach of clause 2.1;
8.2.2. the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful 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;
8.2.3. 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; and
8.2.4. the above warranty relating to such of the Goods as are manufactured by the Seller 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 as is given by the manufacturer to the Seller to the extent that the Seller is able to pass on to the Buyer.
8.3. Subject as expressly provided in these conditions, all warranties, conditions or other terms implied by statute or common law, including but not limited to the Sale of Goods Act 1979, are excluded to the fullest extent permitted by law.
8.4. Any claim by the Buyer which is based on 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 seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If 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.
8.5. In the event of a breach of warranty in Clause 8.1 the Seller shall be entitled to repair or replace the Goods (or the part in question), free of charge or, at the Seller's sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.6. Except in respect of death or personal injury caused by the Seller's negligence or fraudulent misrepresentation (or any other matter in respect of which it would be unlawful for the Seller to exclude or restrict liability):
8.6.1. the Seller shall not be liable to the Buyer for any loss of profit or any indirect, special or consequential loss or damage, costs, expenses or other for consequential compensation whatsoever which arises out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these conditions;
8.6.2. the Seller's entire liability to the Buyer arising under or in connection with these Conditions whether for negligence, breach of contract, or otherwise shall be the greater of:
188.8.131.52. the total price of the Goods; or
184.108.40.206. the amounts of insurance held and then available to the Seller under it's insurance policies in respect of the Buyer's loss.
8.7. The Seller shall not be liable to the Buyer or deemed to be in breach of these conditions 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 generally of the foregoing, the following shall be regarded as causes beyond the Seller's reasonable control;
8.7.1. act of God, explosion, flood, tempest, fire or accident;
8.7.2. war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.7.3. acts, restrictions ,regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.7.4. import or export regulations or embargoes;
8.7.5. strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.7.6. difficulties in obtaining raw materials, labour, fuel, parts or machinery; and
8.7.7. power failure or breakdown in machinery.
8.8. In the event of that the Seller is prevented from carrying out its obligations under this Contract, in accordance with clause 8.7 above, the Seller shall give notice of suspension as soon as is reasonably possible to the Buyer stating the date and the extent of the suspension and its clause. The Seller shall resume the performance of its obligations as soon as reasonably possible after the removal of the cause and shall so notify the Buyer. In the event that the cause continues for more than one month either party may terminate this contract by giving the other party 30 days prior written notice.
9.1. If any Claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:
9.1.1. the Seller is given full control of any proceedings or negotiations in connection with any such claim;
9.1.2. the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1.3. except pursuant to an award by a court from which there is no appeal, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld);
9.1.4. the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
9.1.5. the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and
9.1.6. without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.
10.INSOLVENCY OF BUYER
10.1 This clause applies if:
10.1.1. the Buyer makes any voluntary agreement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
10.1.2. an encumbrancer takes possession, or a receiver is appointed, over any of the property or assets of the Buyer; or
10.1.3. the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4. 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.
10.2. If this clause applies then, notwithstanding any other rights available to the Seller, the Seller may be entitled to cancel the Contract or suspend any deliveries without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately payable regardless of any previous agreement to the contrary and the Buyer's right to resell the Goods set out in clause 7.4 above will be automatically revoked.
11.1.Either party may (without limiting any other remedy) at any time terminate the Contract by giving written notice to the other if the other commits any breach of these conditions and (if capable of remedy) fails to remedy the breach within 30 days after being required by written notice to do so.
11.2. On termination of the Contract the Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Seller shall submit an invoice, which shall be payable by the Buyer immediately on receipt.
11.3. Termination or expiry of the Contract shall not affect any rights or remedies of the Seller that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
11.3. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
12. EXPORT TERMS
12.1. In this clause 12 'Incoterms' means the International Rules for the Interpretation to Trade Terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
12.2. Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 12 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
12.3. The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
12.4. Unless otherwise agreed in Writing between the Buyer and the Seller, the Goods shall be delivered ex-works.
12.5. The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller's premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
13.1. 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 notice. A notice is deemed to have been served as follows;-
13.1.1. if personally by facsimile or E-mail, at the time of delivery;
13.1.2. if posted, at the time of expiration of 48 hours or (in the case of airmail) 7 days after the envelope containing the notice is posted.
13.2. Unless specifically stated to the contrary no failure or delay by either party in exercising any of its rights under these Conditions shall be deemed to be a waiver of that right, and no waiver by either party of any breach of these Conditions shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.3. 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 provisions in question shall not be affected.
13.4. A person who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Contract but this does not affect any right or remedy of a third party which exists or is available apart from under that legislation.
13.5. The Contract shall be governed by the laws of England, and the third parties hereby submit to the non exclusive jurisdiction of the English Courts for all purposes arising in connection with the Contract.
13.6. These Conditions, and the documents referred to in them, constitutes the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Contract. Each of the parties acknowledges and agrees that in entering into this Contract, and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to this agreement or not) other than as expressly set out in this Contract. The only remedy available to it for breach of any warranty shall be for breach of contract under the terms of these Conditions. Nothing in this sub-clause shall however, operate to limit or exclude any liability for fraud.
13.7. The Buyer shall not without the prior written consent of the Seller assign, transfer, charge, declare a trust over or deal in this Contract or its rights under it or part of it, or purport to do any of the same.