TERMS AND CONDITIONS OF BUSINESS
410-011 issue 3
1.FORMATION OF CONTRACTS
1.1 All contracts made by VOLTECH INSTRUMENTS LIMITED (referred to herein as the “Company”) for the sale of its products (referred to herein as the “Products”) shall be deemed to incorporate these terms and conditions. No variation of or addition to these terms and conditions shall form part of any contract unless made or specifically accepted by the Company in writing in the Company’s acknowledgement of order to the Customer.
1.2 Any contract between the Customer and the Company shall comprise these terms and conditions and the Company’s acknowledgement of order. In the event of a conflict between these terms and conditions and any terms contained Company’s acknowledgement of order, the Company’s acknowledgement of order shall prevail.
1.3 These terms and conditions shall override and take the place of any other terms and conditions in any document or other communication used by the Customer in concluding the contract with the Company, or which are implied by trade, custom, practice or course of dealing.
1.4 No contract shall come into effect until the Customer’s order has been accepted in writing by the Company.
2.1 A quotation for the sale of Products given by the Company shall not constitute an offer. A quotation shall only be valid for 30 days from the date of issue.
2.2 Unless otherwise expressly stated in writing by the Company orders are accepted on the basis that the price quoted is exclusive of any value added tax, special packaging materials, carrier’s charges or customs duties.
3.1 Unless otherwise specified in writing by the Company, payment is due from the Customer in advance of delivery upon receipt of the Company’s acknowledgement of order.
3.2 Where it is agreed payment is to be made by way of a letter of credit, it shall be established by the Customer immediately upon receipt of the Company’s acceptance of the Customer’s order. The Company shall specify in its acknowledgement of order to the Customer the conditions upon which it shall be prepared to accept a letter of credit.
3.3 If the Customer shall fail to make payment in full in accordance with sub-paragraph 3.1. of this Condition then (without prejudice to any other rights of the Company) the Customer shall without any need for the Company to give notice become liable to pay to the Company interest on the amount for the time being unpaid at the rate which is four per cent per annum above the base rate from time to time of Lloyds TSB Bank Plc calculated from the date of due payment until the date of actual payment whether before or after any judgement and:-
3.3.1 the Company shall be entitled to suspend all or any other deliveries to be made under that or any other contract with the Customer PROVIDED ALWAYS THAT in any event the Customer shall not in any respect be released from its obligation to the Company under that or any such other contract; or
3.3.2 in lieu of suspension in accordance with sub-paragraph 3.3.1. above the Company shall be entitled to terminate the relevant contract and/or any other contract with the Customer in accordance with Condition 11 below and to claim damages from the Customer.
3.4 Where carriage packing or other charges are stated separately from the price they will nevertheless be payable by the Customer at the same time as if they formed part of the price and shall be treated as such.
3.5 Time for payment is of the essence of these terms and conditions.
3.6 The Customer shall pay all amounts due under the contract in full without any set-off, deduction,credit or withholding except as required by law.
3.7 Refunds are at the discretion of the management
4 DISPATCH AND DELIVERY
4.1 Unless otherwise specified on the Company’s acknowledgement of order, delivery of the Products will take place at the premises of the Customer. Delivery shall be completed on the Products’ arrival at the delivery location.
4.2 Whilst the Company will use reasonable endeavours to adhere to any stated date for delivery, these dates are intended as estimates or statements of expectation only. The Customer shall accordingly accept delivery of the Products when tendered and time of delivery shall not be of the essence of contract.
4.3 The risk in the Products sold shall pass to the Customer on delivery.
4.4 In cases where the Company expressly agrees to conclude the contract of carriage and/or arranges for the insurance of the Products during transit the Company shall be deemed to be acting solely as agent of the Customer and sub-sections 2 and 3 of Section 32 of the Sale of Goods Act 1979 shall not be applicable.
4.5 The Customer undertakes to inspect the Products at the earliest opportunity after delivery and in any event within forty-eight hours of delivery. Any claim for shortfall in a delivery of the Products or claim that the Products do not comply with the order confirmed by the Company must be notified in writing within three days of delivery. Failure to make any such claim within such period shall constitute unqualified acceptance of the Products and waiver by the Customer of all claims relating to non-delivery of the Products or delivery of the wrong Products or error on the Company’s invoice as the case may be.
4.6 If the Customer fails to accept delivery of the Products within 5 business days of the Company notifying the Customer that the Products are ready, then delivery of the Products shall be deemed to have been completed at 9am on the fifth business day after such notification, and the Company shall store the Products and charge the Customer all related costs and expenses (including insurance). If delivery has not taken place within 15 business days of the notification, the Company shall have the right to resell the Products.
4.7 The Company may deliver the Products by instalments. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.8 The Company shall consider requests for cancellation of an order received from the Customer prior to dispatch of any Products but any such cancellation shall be at the discretion of the Company.
5.1 Notwithstanding delivery of the Products (or of any documents representing the Products) the property in the Products shall remain with the Company until the Customer has paid the Company in full for the Products or any other sums due to the Company and the Customer shall hold such Products as bailee.
5.2 The Customer shall (unless otherwise agreed by the Company in writing) ensure that all Products which are in the possession or control of the Customer and the property in which remains with the Company are labelled or otherwise marked so that they may be readily identified.
5.3 So long as the property in the Products remains with the Company the Company shall have the right without prejudice to the obligation of the Customer to purchase the Products to re-possess the Products and for that purpose to go upon any premises occupied by the Purchaser.
5.4 The Company may maintain an action for the price of the Products notwithstanding that property in the Products may not have passed to the Customer.
5.5 The Customer shall keep the Products fully insured against all risks normally insured against by a prudent person carrying on a similar business as the Customer throughout the period between the risk therein passing to the Customer and the property therein ceasing to remain with the Company.
All samples, drawings, specifications and descriptions of Products wherever contained are approximate only being intended to serve merely as a guide and accordingly the Company shall not be liable for their accuracy.
7.1 All copyright and intellectual property rights of whatever nature in the whole or any part of the Products shall remain the property of the Company.
7.2 The Customer shall not:-
7.2.1 copy or duplicate the whole or any part of the software programs or the electrical designs embodied in the Products (referred to herein as “the Software” and “the Designs” respectively);
7.2.2 alter modify disassemble or decompile the whole or any part of the Software;
7.2.3 alter or modify the Designs.
8.1 Subject to the remainder of this Clause 8, the Company hereby warrants that:
8.1.1 the Company has the right to sell the Products;
8.1.2 at the time of sale the Products are free from any charge or encumbrance and the Customer shall be entitled to enjoy quiet possession of the Products;
8.1.3 the Products supplied are free from material defects in workmanship and/or materials at the time that the risk passes to the Customer and that for a period of one year from such time the Company will repair or replace any Product which does not comply with this warranty PROVIDED ALWAYS THAT the Company’s liability under this warranty shall be limited to the repair or replacement of affected Products and is conditional upon the Customer:-
126.96.36.199 notifying the Company promptly of any such material defect and in any event within such period of one year;
188.8.131.52 returning to the Company the affected Products properly and adequately packed, carriage or post paid, within fourteen days of such notification;
184.108.40.206 having ensured that the Products have not been tampered with, repaired, modified or altered in any way; and
220.127.116.11 ensuring that the Products are protected from harm or otherwise properly cared for and are retained in the possession of the Purchaser.
8.2 The warranties contained in paragraph 8.1. of this Condition are given in lieu of and shall be deemed to exclude all other warranties and conditions whether express or implied and whether arising by common law statute or otherwise.
8.3 Nothing in these terms and conditions shall limit or exclude the Company’s liability for (a)death or personal injury resulting from the negligence of the Company (b) fraud or fraudulent misrepresentation (c) breach of the terms implied by section 12 Sale of Goods Act 1979 or (d) defective products under the Consumer Protection Act 1987.
8.4 Subject to clause 8.3:
8.4.1 the Company shall have no liability for failure to deliver the Products to the extent such failure is caused by reason of circumstances beyond its control(including without prejudice to the generality of the foregoing war, strike,lock-out, sit-in, trade dispute, flood, accident to premises or plant or machinery, or shortage of any resources or labour) (“Force Majeure”) or the customer’s failure to provide adequate delivery instructions. In the event of Force Majeure, the Company shall be entitled to cancel or rescind the contract without liability of whatsoever nature for loss or damage resulting there from;
8.4.2 the failure by the Company to adhere to any stated date of delivery shall not constitute a breach of the contract and the Customer shall not be entitled to treat the contract as thereby repudiated or to rescind it or any related contract in whole or in part or claim compensation for such failure or for any loss or damage resulting there from;
8.4.3 the Company shall not be liable for the failure of any of the Products supplied to be fit for any particular purpose for which they are required;
8.4.4 the Company shall under no circumstances whatever be liable to the Customer,whether in contract, tort, breach of statutory duty or otherwise, for any loss of profit or any indirect or consequential loss arising under or in connection with this contract;
8.4.5 the Company’s total liability to the Customer in respect of all other losses arising under or in connection with the contract, whether in contract, tort, breach of statutory duty or otherwise, shall in no circumstances exceed the contract price of the Products; and
8.4.6 the Customer shall not rely upon any statement, promise or representation concerning any Products supplied unless the same shall have been made by the Company in writing.
8.5 The price at which the Company agrees to supply the Products to the Customer is based on:-
8.5.1 the warranties given and accepted; and
8.5.2 the extensions and restrictions of liability imposed.
The Customer shall not assign, transfer, mortgage, charge or deal with any of its rights here under or under any contract for the purchase of Products in whole or in part without the prior written consent of the Company.
10.1 These terms and conditions shall apply to all export sales except as varied in the Company’s acknowledgement of order to the Customer.
10.2 It is hereby expressly agreed that the Uniform Law on International Sales shall not apply to the contract.
10.3 Where the Products are to be delivered outside the United Kingdom:-
10.3.1 payment shall be made in the manner specified on the Company’s acknowledgement of order to the Customer;
10.3.2 the Products shall be delivered upon the terms specified in the Company’s acknowledgement of order to the Customer;
10.3.3 the Customer shall reimburse the Company for any carriage freight and insurance and other charges to the extent that any such costs incurred by the Company are not included in the price of the Products.
10.4 The Customer must obtain all necessary export or import licence exchange control consents and all other approvals of national and regional governments and authorities required to enable performance of the contract by both the Company and the Customer as soon as reasonably practicable and in no case later than required to enable the Company to deliver the Products on the earliest date upon which delivery of the Products can be effected.
11. INSOLVENCY AND BREACH OF CONTRACT
11.1 In the event that:-
11.1.1 the Customer shall commit any breach of the contract and shall fail to remedy such breach (if capable of remedy) within a period of seven days from receipt of notice in writing from the Company requesting such remedy; or
11.1.2 any distress or execution is levied upon any of the goods or property of the Customer, or
11.1.3 the Customer suspends, or threatens to suspend, payment of its debts, or is, admits or is deemed to be unable to pay its debts as they fall due within the meaning of sections 123 or 268 of the Insolvency Act 1986 (as appropriate), or
11.1.3 the Customer commences negotiations concerning any arrangement with or for the benefit of its creditors or commits any act of bankruptcy or insolvency or being a limited company, an application or order is made for the appointment of an administrator, receiver, administrative receiver or an analogous appointment, in relation to the whole or any part of its undertaking property or assets; or
11.1.4 any order is made, a resolution is passed, a petition is filed, or analogous proceedings are taken for the winding-up of the Customer (save for the purposes of reconstruction or amalgamation without insolvency and previously approved in writing by the Company) then and in any such case the Company shall be entitled without prejudice to its other rights here under forthwith to suspend all further deliveries under any contract until the default has been made good or to terminate the contractor any other contracts between the Customer and the Company or any unfulfilled part or parts thereof or at the Company’s option to make partial deliveries.Notwithstanding any such termination the Customer shall pay the Company for all work done materials used and Products delivered up to and including the date of termination and all outstanding sums shall become immediately due.
11.2 The Customer shall notify the Company immediately if any of the events set out in 11.1 above occur or if the Customer reasonably believes any such event is about to happen.
If at any time any one or more of the provisions of these terms and conditions become invalid illegal or unenforceable in any respect under any law the validity and enforceability of the remaining provisions hereof shall not in anyway be affected or impaired thereby. If any invalid, illegal or unenforceable provision would be valid enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal valid and enforceable.
The headings used in these terms and conditions are for convenience only and shall not affect the construction thereof.
14.1 These terms and conditions and every contract made pursuant thereto shall be governed in all respects by and in accordance with the laws of England and Wales.
14.2 Subject to clause 14.3, the parties submit to the exclusive jurisdiction of the courts of England and Wales and agree that in respect of proceedings in England and Wales and in any other jurisdiction, process may be served on either of them at their registered office.
14.3 Nothing in this clause 14 shall limit the right of the Company to take proceedings against the Customer in any other court of competent jurisdiction, nor shall the taking of proceedings in any one or more jurisdiction preclude the taking of proceedings in any other jurisdiction, whether concurrently or not,to the extent permitted by the law of such other jurisdiction.