General conditions of sale, installation and commissioning
1. GENERAL : DEFINITIONS
a) “Buyer means the person who buys or agrees to buy the goods from the seller.
b) “Conditions” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the seller.
c) “Delivery Date” means the date specified by the seller when the goods are to be delivered.
d) “Goods” means the articles which the buyer agrees to buy from the seller.
e) “Price” means the price of the goods excluding carriage packing, insurance and VAT, which shall be valid for any period stated in any quotation provided by the seller to the buyer, such period not exceeding 30 days in any event.
f) “Seller” means Edale Ltd
2. LICENSE OR PERMITS
Where an export or import license, foreign exchange control or similar authorisation is required for performance of the contract the buyer shall be responsible for obtaining such a license, control or authorisation and shall take all reasonable steps to obtain these.
a) All goods supplied are subject to reasonable availability to the seller of the goods and suitable materials and components. The seller reserves the right to substitute suitable alternative materials and components where necessary.
b) All designs, drawings, descriptive matter, weights, dimensions, specifications, brochure, catalogues, price lists, and all advertising matter are approximate and by way of identification only, and shall not form part of the contract, or give rise to any independent or collateral liability of any kind.
c) As between the buyer and seller, all designs, drawings, specifications, brochures, catalogues, price lists,advertising matter are the copyright of and shall remain the property of the seller and must not be copied reproduced or divulged either directly or indirectly to any other person without the prior permission of the seller.
4. THE PRICE AND PAYMENT OF THE PRICE
a) Unless otherwise agreed in writing the price for the goods and any installation and commissioning (where appropriate) shall be set out in the Seller’s quotation provided that the buyer has notified The Seller of all information relevant to the delivery, installation and commissioning of the goods and provided further that the delivery of the goods including installation and commissioning can be carried out buy The Seller without interruption. Where interruption occurs other than through fault of the Seller such that work has to be carried out in two or more operations the Seller shall be entitled to invoice the Buyer for additional costs and expenses incurred by the Seller arising directly or indirectly from such lack of continuity of work.
b) The price for the goods is exclusive of costs of packing and of any Value Added Tax due on the sale of the goods, which the buyer shall be liable to pay to the seller in addition to the price.
c) Payment of the price shall be due within 30 days of the date of invoice unless agreed otherwise. Time for payment of a deposit (if required) and of the Price shall be of the essence.
d) The Buyer shall make payment of the Price in full, without deduction or retention of any part of the price of the goods, whether such deduction or retention is purported to be by way of defence, set-off, counterclaim or otherwise.
a) Except where the contract includes installation or commissioning, delivery of the goods shall be made to the Buyer collecting goods from The Seller’s premises after the Seller has notified the Buyer that the goods are ready for collection. The goods shall be suitably packed to withstand the conditions of normal delivery/ shipment. Special packing will only supplied on express written request and will be charged for in addition to the price.
b) Any time or date quoted by the Seller for delivery is given and intended as an estimate only and subject to availability of goods. The Seller shall not be liable in any circumstances for any loss or damage of any kind caused by failure to deliver within such time.
c) Unless otherwise agreed in writing, the Seller is entitled to make deliveries by instalments or partial deliveries. Each instalment shall be construed as constituting a separate agreement to which all provisions of these conditions apply with all necessary alterations.
6. TITLE AND RISK
a) The goods shall be at the Buyer’s risk as from delivery. The goods shall remain the sole and absolute property of the Seller until the Buyer has paid in full the agreed price thereof and all other sums due from the Buyer to the Seller whether under this contract or otherwise (including any interest thereon). Notwithstanding such retention of title, the Seller shall be entitled to maintain an action for the price of the goods as soon as payment falls due.
b) The Buyer acknowledges that he is in possession of the goods solely as bailee and in fiduciary capacity for the Seller until such time as the Price and all other sums due from the Buyer to the Seller, whether under this contract or other contracts, have been paid in full. Until such time the Buyer will store the goods on its premises separately from other goods (including its own) and in a manner which makes them readily identifiable as belonging to the Seller and shall not alter, modify or add to any such goods or any marking of identification on them and shall maintain them in good condition. Until property in the goods passes to the Buyer, the whole proceeds of any sale or otherwise of the goods shall be held on trust for the Seller and shall not be mixed with any or other money or paid into any overdrawn bank account and, shall at all material times be identified as the Seller’s money.
c) If payment for the goods supplied under this or any other contract is overdue, in whole or in part, then without prejudice to any of the Seller’s other rights the seller may take possession of and/or resell any goods the title to which it has retained and upon request of the Seller the Buyer shall allow the Seller to enter its premises during normal working hours for the purpose of recovering such possession of such goods.
7. DEFAULT AND INSOLVENCY
Notwithstanding any other agreement as to the terms of payment, the total invoice price shall immediately become due and payable and the seller shall have the right to forthwith to terminate this contract (without prejudice to any other of its rights) upon the occurrence of any of the following events.
i) If the Buyer commits an act of Bankruptcy or if a petition of bankruptcy is presented against the Buyer;
ii) If the Buyer ceases or threatens to cease to carry on business;
iii) If the Buyer shall enter into any negotiations for an arrangement or composition with its creditors;
iv) In the event of the Buyer being a limited company, if a petition is presented for an administration order or if a petition is presented or a resolution is proposed to wind up the Buyer or if a receiver of its assets or undertaking or part thereof is appointed;
v) If any distress or execution is levied on the Buyer. Upon such termination the Seller shall have such rights of repossession and resale as were set out in sub-clause 6 c) above.
8. INSTALLATION AND COMMISSIONING
Where installation and commissioning are included in the contract :-
a) The Seller shall install and commission the goods as specified in the Seller’s quotation or acceptance of order.
b) The buyer undertakes to disclose to the Seller prior to contract all information necessary to enable the Seller to install and/or commission the goods.
c) The buyer shall provide free and uninterrupted access to its premises for the required period required by the Seller to install the goods.
d) During such installation the Buyer shall provide free of charge to the Seller lighting and electricity and suitable electrical isolator adjacent to goods together with extract ducting and lifting gear and all other equipment or apparatus notified by the Seller as reasonably necessary for installation of the goods.
e) The Buyer shall pay for all work in addition to that referred in sub-clause (a) above required as a result of the Buyer’s breach of this clause or for any other reason. f) Any time worked by the Seller’s employees at the request of the Buyer outside the Seller’s normal working hours shall be paid for by the Buyer.
g) If for any reason beyond the control of the Seller installation cannot be proceeded with at the time when delivery of the goods is effected, all additional costs incurred unloading or placing the goods into storage including attendance of the Seller’s employees will be payable by the Buyer.
h) Goods supplied shall be deemed to have been commissioned and accepted by the buyer when the installation and on site tests (where included) have been completed or seven days after such goods shall have been put into commercial use, whichever shall be earlier. This time of commissioning shall not be delayed on account of additions, minor omissions or defects which do not materially affect the commercial use of the goods. Except as otherwise provided in these conditions all liability of the Seller shall cease on commissioning.
9. EXTENT AND LIMITS OF LIABILITY (DEFECTIVE GOODS)
a) Subject to the provisions of this clause the seller guarantees all goods of its manufacture and where applicable all installation and commissioning work against any defect for a period of twelve months provided that the goods have not been used for periods exceeding 8 hours in any one day during that 12 month period. This guarantee applies only to the parts manufactured by the Seller. Parts not manufactured by the Seller, such as motors, drives and tools, are covered by the original manufacturer’s warranty. The Seller’s liability will in any event be limited solely to repairing, or at its option replacing, the defective product or part thereof remedying the defective installation or commission work as the case may be free of charge.
b) Except as expressly provided in sub-clause a), b) and c) of this Clause and except where the absolute prohibitions against exclusion and restriction of liability contained in the Unfair Contract Terms Act 1977 apply the Seller shall in no circumstances be liable to the Buyer in respect of any loss, damage or injury of any kind (which for the avoidance of doubt includes consequential loss or damage) whether suffered by the buyer or any other party and howsoever caused (including being caused by any defect in, failure of, or unsuitably for any purposes of the goods, the installation thereof, or by any negligence whether in relation to design, manufacture or installation of the goods at all) and all conditions warranties or other terms whether express or implied statutory or otherwise are hereby excluded.
c) The Seller shall not be liable for any loss or expense of any kind (which for the avoidance of doubt includes consequential loss or damage) including but not limited to loss of profits, loss of business revenue, loss of user or loss of goodwill whether of The Buyer or of any party arising out of any breach of this contract by the Seller.
d) Notwithstanding the foregoing or following Clauses or sub-clauses of these conditions, the liability of the Seller in respect of any claim whatsoever and howsoever arising shall be limited to and shall not exceed £25,000.00 (Twenty five thousand pounds sterling).
10. SET OFF
The seller shall be entitled to apply any sum in any way arising out of the contract due from the Seller to the buyer in settlement of any sum due from the Buyer to any other company in the Seller’s Group of Companies and (where there is any amount due from any other company in the Seller’s Group of Companies to the Buyer) the Seller shall on behalf of the Buyer be entitled to give such other company good receipt for any sum which the Buyer pay to the Seller in settlement of any sum due from the Buyer to the Seller in any way arising out of the contract. “Seller’s Group of Companies” shall mean Butterfly Holdings plc and all subsidiary companies of that company as defined in section 736 of the Companies Act 1985.
11. PROPER LAW
The proper law of the Contract is English Law. The Buyer submits to the exclusive jurisdiction of the Courts of England and Wales.