CONDITIONS OF SALE
Encoders UK Limited Tel: 0121 378 5577 Fax: 0121 378 5599
1.0 Basis of the sale
1.1 Any typographical, clerical or other error omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the seller shall be subject to correction without any liability on part of the seller.
2.0 Orders and specifications
2.1 No order submitted by the buyer shall be deemed to be accepted by the seller unless such acceptance is confirmed in writing by the seller’s authorised representative or, if earlier, the goods are shipped by the seller.
- 2.2 The buyer shall be responsible for ensuring the accuracy of the terms of its order (including any applicable specification), and for giving the seller any necessary information relating to the goods (including as a minimum the relevant part number from the relevant data sheet for the goods) within a sufficient time to enable the seller to perform the contract in accordance with its terms.
- 2.3 The quality of the goods shall be that set out in the seller’s quotation (if accepted by the buyer) or the buyers order (if accepted by the seller). The quality and description of and any specification for goods will be associated with the relevant part number and data sheet, or, where there is no data sheet, the specification agreed in writing between seller and buyer.
- 2.4 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, the buyer shall indemnify the seller against all loss, damages 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 property rights of any other person which results from the sellers use of the buyers specification.
- 2.5 The seller reserves the right to make any changes in the specification of the goods which are required to conform with any applicable statutory or European Union requirements or, where the goods are to be supplied to the sellers specification, which do not materially affect their quality or performance.
- 2.6 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 al labour and materials used), damages. Charges and expenses incurred by the seller as a result of cancellation.
3.0 Price of the goods
3.1 The price of the goods shall (subject to 4.2) be the sellers quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price last notified by the seller to the buyer before the contract is made, or if none, the price in the buyers order. All prices in quotations 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.
- 3.2 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 change in delivery dates, quantities or specifications for the goods requested by the buyer, or any delay caused by instructions of the buyer or failure of the buyer to give the seller adequate information or instructions.
- 3.3 Except as otherwise stated under the terms of any quotation or in any price list of the seller, and unless otherwise agreed in writing between the buyer and the seller, all prices are given by the seller “ex works”, and where the seller agrees to deliver the goods otherwise than at the sellers premises, the buyer shall pay the sellers charges for transport, packaging and insurance.
- 3.4 The price is exclusive of any applicable value added tax, which the buyer shall be additionally liable to pay to the seller.
4.0 Terms of payment
4.1 For buyers paying in advance or by credit card, invoices will be issued and receipted at the time of payment.
- 4.2 For buyers whose credit has been approved by the seller, subject to any special terms agreed in writing between the buyer and the seller, the seller shall be entitled to invoice the buyer for the price of the goods at any time after the contract is made (as referred to in para 2 above).
- 4.3 The buyer shall pay the price of the goods without any deduction or set off within 30 days of the sellers invoice, and the seller shall be entitled to recover the price, notwithstanding 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.
- 4.4 If the buyer fails to make the payment on the due date then, without prejudice to any other right or remedy available to the seller, the seller shall be entitled to do all or any of the following:-
- 4.5 1. Cancel the contract or suspend any further orders, contracts or deliveries to the buyer:
4.6 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
4.7 3. Charge the buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 4% p.a above The Bank base rate from time to time, until payment in full is made.
5.1 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.
- 5.2 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.
- 5.3 If the seller fails to deliver the goods for any reason other than any cause beyond the sellers reasonable control or the buyers fault, and the seller is accordingly liable to the buyer, the sellers liability shall be limited to the excess (if any) of the cost to the buyer (in the cheapest available market) or similar goods to replace those not delivered over the price of the goods.
- 5.4 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 buyers reasonable control or by reason of the sellers fault) then, without prejudice to any other right or remedy available to the seller, the seller may;
5.5 1. Store the goods until actual delivery and charge the buyer for the reasonable costs (including insurance) of storage; or
5.6 2. Sell the goods at the best price readily obtainable and (after deducting all reasonable storage 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.
6.0 Risk and property
6.1 Risk of damage to or loss of the goods shall pass to the buyer:
6.2 1. In the case of goods to be delivered by the buyer collecting the goods at the seller’s premises, at the time when the seller notifies the buyer that the goods are available for collection;
6.3 2. In the case of goods to be delivered by way of delivery to the buyers firstname.lastname@example.org carrier (including a carrier arranged by the seller) at the time when the goods are collected by the carrier;
- 6.4 3. In the case of the goods to be delivered otherwise than at the sellers premise, 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.
- 6.5 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 including all transport packing and insurance costs and all VAT.
- 6.6 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 goods separate from those of the buyer and third parties and properly stored, protected and insured and identified as the seller’s property.
- 6.7 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.
7.0 Warranties and liability
7.1 Subject to the conditions set out below the seller warrants that goods manufactured by the seller will at the time of delivery correspond with the applicable specification and ill be free from defects in material and workmanship for the period referred to in the relevant data sheet, or if no period is specified, the period of 12 months from the date of their initial use on new goods.
- 7.2 The above warranty in para 8.1 does not extend to goods or parts, materials or equipment which are not manufactured by the seller. For these the buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the seller. The seller warrants that it will use all reasonable efforts to procure for the buyer the benefit of the manufacturers warranty.
- 7.3 The above warranties are given by the seller subject to the following conditions:
7.4 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;
7.5 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 sellers or manufacturers instruction (whether oral or writing), misuse or alteration or repair of the goods without the sellers approval;
- 7.6 3. The seller shall be under no liability if the total price for the goods has not been paid by the due date for payment.
- 7.7 Subject as expressly provided in these conditions, and except where the goods are sold to a person dealing with consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by the statute or common law excluded to the fullest extent permitted by law.
- 7.8 Where the goods are sold under a consumer transaction (as defined by the Customer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the buyer are not affected by these conditions.
- 7.9 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 or any shortage shall (whether or not delivery is refused by the buyer) be notified to the seller within 7 days from the date of arrival of goods at the delivery address 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, 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 have been delivered in accordance with the contract.
- 7.10 Where any valid claim based on any defect in the quality or condition of any of the goods (or any part), or their failure to meet specification, is notified to the seller in accordance with these conditions, the remedy of the buyer will be to require the seller to replace the defective goods or part free of charge or, at the sellers sole discretion, refund to the buyer the price of such defective goods or part where a replacement is provided by the seller, (but subject to limit equal to the invoiced value of the original defective item) to reimburse to the buyer the actual cost incurred by the buyer removing the defective item, fitting the replacement item and conducting testing, but the seller shall have no further liability to the buyer.
- 7.11 The supplier supplies a very wide range of devices. Standard products from the sellers catalogues are not designed specifically for a particular end-use of a particular buyer. The buyer is responsible for identifying which device is required and for fitting and commissioning the device and for the controlling and resale, use and operating environment of the device. Custom manufactured goods are manufactured or processed according to the requirements of the buyer. Those requirements and the use of the goods are under the control of the buyer. Accordingly, except in respect of death or personal injury caused by the sellers negligence, and except as expressly provided in these conditions, 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 loss, damage, injury, cost or expense of any kind, whatever and however caused, arising directly or indirectly in connection with this contract including (without limitation) loss of profits, of production or of anticipated savings or any consequential loss or damage whatsoever (and whether any of the above are 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 on their use or the resale of the goods by the buyer or ay third party. The buyer is advised to effect insurance cover accordingly.
- 7.12 Except in respect of death or personal injury caused by the sellers negligence, and except as expressly provided in these conditions, in respect of the goods which are defective or fail to correspond to specification and for shortages, and the seller shall not be liable for any loss, damage, injury, cost or expense of any kind, whatever and however caused, arising directly or indirectly from any such cause, including (without limitation) loss of profits, of production or of anticipated savings or any consequential loss or damage whatsoever (and whether any of the above are caused by the negligence of the seller, its employees or agents or otherwise). The buyer is advised to effect insurance cover accordingly.
- 7.13 In the event of a product recall being necessary, the buyer will co-operate with the reasonable requirements of the manufacturer of the goods in accordance with the best practice for product safety.
- 7.14 The seller and buyer have agreed to these conditions on the basis that they, and each provision of each sub-cause 8 in particular, are reasonable in the circumstances.
8.0 Insolvency of buyer
If: (a) The buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or form) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction): or (b) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the buyer; or (c) the buyer ceases, or threatens to cease, to carry on business; or (d) 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, then, without prejudice to any other remedy available 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 notwithstanding any previous agreement or arrangement to the contrary.
9.1 Any notice for the purpose of these conditions shall be in writing addressed to the relevant party at the fax, email, geographical or other address used for the placing or accepting of orders or such other address as may at the relevant time been notified pursuant to this provision to the party giving the notice.
- 9.2 No waiver 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 of any other provision.
- 9.3 If any provision of these conditions (each part of these sub-clause of conditions being regarded as a separate provision for this purpose) is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions if these conditions and the remainder of the provision in question shall not be affected thereby.
- 9.4 A person that is not a party to the contract shall have no right under the contract (Rights of Third Parties) Act 1999 to enforce any term of the contract agreement.
- 9.5 The contract shall be governed and construed in accordance with the laws of England and the parties submit to the exclusive jurisdiction of the Courts of England.