In this document the following words shall have the following meanings:
a. Agreement – means these Conditions, together with the terms of any applicable Specification Document.
b. Customer– means the organisation or person who purchases goods and/or services from the Supplier.
c. Intellectual Property Rights – means all patents, registered & unregistered designs, copyright, trade marks, know-how & all other forms of intellectual property in existence anywhere in the world.
d. Specification Document – means a statement of work, quotation, sales order document or other similar document describing the goods and/or services to be provided by the Supplier and as agreed in writing by the Supplier.
e. Supplier– means Techbelt Ltd. or any other trading division of Techbelt now & in the future.
f. Contract – means any contract between the Supplier & the Customer for the sale & purchase of the goods and/or services, incorporating these conditions.
g. Delivery Point – means the place where the delivery of the Goods is to take place under Condition 5.
h. Goods – means any goods and/or services agreed in the Contract to be supplied to the Customer by the Supplier (including any parts or parts of them).
i. A reference to a particular law is a reference to it as it is in force for the time being, taking into account of any amendment, extension, application or re-enactment & includes any subordinate legislation for the time being in force made under it.
j. Words in singular include the plural & in the plural include the singular.
k. Conditions heading do not affect the interpretation of these conditions.
These Conditions should apply to all contracts for the supply of Goods by the Supplier to the Customer.
a. Before commencement of the supply of Goods the Supplier shall submit to the Customer a Specification Document which shall specify the goods &/or services to be supplied & the price payable. The Customer shall notify the Supplier immediately if the Customer does not agree with the contents of this document. All Specification Documents shall be subject to these Conditions.
b. These Conditions shall apply to all Suppliers’ sales & any variations to these Conditions & any representations about the Goods shall have no effect unless expressly agreed in writing & signed by a director of the Supplier. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract. Nothing in this Condition shall exclude or limit the Supplier’s liability for fraudulent misrepresentation.
c. No terms or conditions endorsed on, delivered with, or contained in, the Customer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such a document being referred to in the Contract.
d. Each order for Goods by the Customer or acceptance or quotation from the Supplier shall be deemed to be an offer by the Customer to buy Goods subject to these Conditions.
e. No order placed by the Customer shall be deemed to be accepted by the Supplier until a written acknowledgement of order is issued by the Supplier or (if earlier) the Supplier delivers the Goods to the Customer.
f. Any quotation is given on the basis that no Contract shall come into existence until the Supplier despatches an acknowledgement of order to the Customer. Any quotation is valid for 30 days (unless notified in writing by the Supplier or otherwise) providing that the Supplier has not previously withdrawn it.
3 PRICE & PAYMENT
a. The price for the supply of Goods are as set out in the quotation or sales order document. The Supplier shall invoice the Customer on completion of the work or delivery of the Goods supplied.
In the event of “special” payment terms being agreed, these will be stated in the Specification Document & agreed prior to commencement of work.
b. The price of the Goods shall be exclusive of any value added tax & all costs or charges in relation to packaging, loading, unloading, carriage & insurance, all of which amounts the Customer shall pay in addition when it is due to pay for the Goods.
c. Invoiced amounts shall be due & payable 30 days from the date of the invoice. The Supplier shall be entitled to charge interest on overdue invoices from the date when the payment becomes due from day to day until the date of payment at a rate of 3% above base rate of the Bank of England. In the event that the Customer’s procedures require that an invoice shall be submitted against a purchase order prior to payment, the Customer shall be responsible for issuing such a purchase order before the Goods are supplied.
d. No payment shall be deemed to have been received until the Supplier has received cleared funds.
e. All payments payable to the Supplier under the Contract shall become due immediately on its termination despite any other provision.
f. The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Supplier to the Customer.
4 SPECIFICATION OF GOODS
a. All Goods shall be required only to conform to the specifications in the Specification Document which shall include the acceptable tolerances for the industry and environment in which they are to be used. For the avoidance of doubt no description, specification or illustration contained in any product pamphlet or other sales or marketing literature of the Supplier & no representation written or oral, correspondence or statement shall form part of the Contract unless stated in writing and signed by a director of the Supplier.
b. The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
c. Subject to Clause 4.d if:
(i) The Customer gives notice in writing to the Supplier within 14 days of receipt that some or all of the Goods do not comply with the Specification; and
(ii) The Supplier is given a reasonable opportunity of examining such goods; and
(iii) The Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the (Supplier’s or Customer’s) cost
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
d. The Supplier shall not be liable for the Goods’ failure to comply with the Specification in any of the following events:
(i) the Customer makes any further use of such Goods after giving notice in accordance with Clause 4.c;
(ii) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(iii) the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
(iv) the Customer alters or repairs such Goods without the written consent of the Supplier;
(v) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(vi) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
e. Except as provided in this Clause 4, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the Specification.
f. The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
g. These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
a. Unless otherwise agreed in writing by the Supplier, delivery of the Goods shall take place at the Supplier’s place of business where the Supplier’s place of business is in the UK
b. For any deliveries outside the UK the Delivery Point shall be (agreed in writing)/ (specified on the order) and Goods shall be supplied working to Incoterms®2010.
c. The date of delivery specified by the Supplier is an estimate only. The Customer shall take delivery of the Goods within 14 days of the Supplier giving notice that the Goods are ready for delivery. Time for delivery shall not be of the essence of the Contract. If no dates are specified, delivery shall be within a reasonable time.
d. Subject to the other provisions of these Conditions the Supplier shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill & similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Supplier’s negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract unless such delays exceeds 180 days.
e. If for any reason the Customer fails to accept delivery of any of the Goods when they are ready for delivery, or the Supplier is unable to deliver the Goods in time because the Customer has not provided appropriate instructions, documents, licences or authorisation:
i. Risk in the Goods shall pass to the Customer on the agreed date of delivery (including for loss or damage caused by the Supplier’s negligence).
ii. The Goods shall be deemed to have been delivered on the agreed date of delivery where the Supplier has made the Goods available but the Customer has not collected them; and the Supplier may store the Goods until delivery; whereupon the Customer shall be liable for all related costs & expenses (including, without limitation, storage & insurance).
f. The Customer shall provide at the Delivery Point & at its expense adequate & appropriate equipment & manual labour for unloading of Goods.
g. If the Supplier delivers to the Customer a quantity of up to 5% more or less than the quantity accepted by the Supplier, the Customer shall not be entitled to object or to reject the Goods or any of them by reason of the surplus or shortfall & shall pay for such Goods at the pro rata Contract Rate.
h. The Supplier may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid in accordance with the provisions of the Contract.
i. Each instalment shall be a separate Contract & no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
6 NON DELIVERY
a. The quantity of any consignment of Goods is recorded by the Supplier upon despatch from the Supplier’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide evidence proving the contrary.
b. The Supplier shall not be liable for any non-delivery of Goods (even if caused by the Supplier’s negligence) unless the Customer gives written notice to the Supplier of the non-delivery within 3 days of the date when the Goods would in the ordinary course of events be received.
c. Any liability of the Supplier for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata contract rate (as per our written quotation) against any invoice raised for such Goods.
7 TITLE & RISK
a. The Goods are at the risk of the Customer from the time of delivery.
b. Ownership of the Goods shall not pass to the Customer until the Supplier has received in full (in cash or cleared funds) all sums due to it in respect of:
i. the Goods; &
ii. all other sums which are or which become due to the Supplier from the Customer on any account.
c. Until ownership of the Goods has passed to the Customer, the Customer shall;
i. hold the Goods on a fiduciary basis as the Supplier’s Bailee;
ii. store the Goods (at no cost to the Supplier) separately from all other Goods of the Customer or any third party in such a way that they remain readily identifiable as the Supplier’s property; iii. not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; & maintain the Goods in a satisfactory condition. d. The Customer’s right to possession of the Goods shall terminate immediately if;
i. the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purposes only of reconstruction or amalgamation, or has a receiver and /or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or notice of intention to appoint an administrator is given by the Customer or its Directors or by giving the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
ii. the Customer encumbers or in any way changes any of the Goods.
e. The Supplier shall be entitled to recover payment for the Goods not withstanding that ownership of any of the Goods has not passed from the Supplier.
f. The Customer grants the Supplier its agents & employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or where the Customer’s right to possession has terminated, to recover them.
g. Where the Supplier is unable to determine whether any Goods in respect of which the Customer’s right to possession has terminated, the Customer shall be deemed to have sold all the Goods of any kind sold by the Supplier to the Customer in the order in which they were invoiced to the Customer.
h. On termination of the Contract, howsoever caused, the Supplier’s (but not the Customer’s) rights contained in this condition 7 shall remain in effect.
8 CUSTOMER’S OBLIGATIONS
a. To enable the Supplier to perform its obligations under this Agreement the Customer shall:
i. co-operate with the Supplier;
ii. provide the Supplier with any information reasonably required by the Supplier;
iii. obtain all necessary permissions & consents which may be required before the commencement of the services; &
iv. comply with such other requirements as may be set out in the Specification Document or otherwise agreed between the parties in writing.
b. The Customer shall be liable to compensate the Supplier for any expenses incurred by the Supplier as a result of the Customer’s failure to comply with Clause 8.a.
c. Without prejudice to any other rights to which the Supplier may be entitled, in the event that the Customer unlawfully terminates or cancels the Goods or services agreed to in the Specification Document, the Customer shall be required to pay to the Supplier:
(i) the cost of any goods which have been made to order as at the date of the termination; and
(ii) as agreed damages & not as a penalty the full amount of any third party costs to which the Supplier has committed; and
(iii) in respect of cancellations on less than 5 working days written notice the full amount of the Goods contracted for as set out in the Specification Document.
The Customer agrees this is a genuine pre-estimate of the Supplier’s losses in such a case. For the avoidance of doubt, the Customer’s failure to comply with any obligations under Clause 8.a shall be deemed to be a cancellation of the Goods & subject to the payment of the damages set out in this Clause 8c.
d. In the event that the Customer or any third party, not being a sub-contractor of the Supplier, shall omit or commit anything which prevents or delays the Supplier from undertaking or complying with any of its obligations under this Agreement, then the Supplier shall notify the Customer as soon as possible, &;
i. the Supplier shall have no liability in respect of any delays to the completion of any project;
ii. if applicable, the timetable for the project will be modified accordingly;
iii. the Supplier shall notify the Customer at the same time if it intends to make any claim for additional costs.
9 ALTERATIONS TO THE SPECIFICATION DOCUMENT
a. The parties may at any time mutually agree upon & execute new Specification Documents. Any alterations in the scope of Goods to be provided under this Agreement shall be set out in the Specification Document, which shall reflect the changed Goods & price & any other terms agreed between the parties.
b. The Customer may at any time request alterations to the Specification Document by notice in writing to the Supplier. On receipt of the request for alterations the Supplier shall, within 5 working days or such other period as may be agreed between the parties, advise the Customer by notice in writing of the effect of such alterations, if any, on the price & any other items already agreed between the parties.
c. Where the Supplier gives written notice to the Customer agreeing to perform any alterations on terms different to those already agreed between the parties, the Customer shall, within 5 working days of receipt of such notice or such other period as may be agreed between the parties, advise the Supplier by notice in writing whether or not it wishes the alterations to proceed.
d. Where the Supplier gives written notice to the Customer agreeing to perform alterations on terms different to those already agreed between the parties & the Customer confirms in writing that it wishes the alterations to proceed on those terms, the Specification Document shall be amended to reflect such alterations & thereafter the Supplier shall perform this Agreement upon the basis of such amended terms.
a. The Customer shall indemnify the Supplier against all claims, costs & expenses which the Supplier may incur & which may arise, directly or indirectly, from the Customer’s breach of any of its obligations under this Agreement, including any claims brought against the Supplier alleging that any Goods provided by the Supplier in accordance with the Specification Documents infringes the Intellectual Property Rights of a third party and insofar as such compliance was with Intellectual Property Rights or information the Customer had supplied.
11 LIMITATION OF LIABILITY
a. Except in respect of death or personal injury due to negligence for which no limit applies, the entire liability of the Supplier to the Customer in respect of any claim whatsoever or breach of this Agreement, whether or not arising out of negligence, shall be limited to the price paid by the Customer to which the claim relates.
b. In no event shall the Supplier be liable to the Customer for any loss of business, loss of opportunity or loss of profits or for any other indirect or consequential loss or damage whatsoever. This shall apply to even where such a loss of opportunity or loss of profits or any other indirect or consequential loss or damage whatsoever. This shall apply where such a loss was reasonably foreseeable or the Supplier had made aware of the possibility of the Customer incurring such a loss.
c. Nothing in these Conditions shall exclude or limit the Supplier’s liability for death or personal injury resulting from the Supplier’s negligence or that of its employees, agents or sub-contractors.
a. Either party may terminate this Agreement forthwith by notice in writing to the other if;
(i) the other party commits a material breach of this Agreement &, in the case of a breach capable of being remedied, fails to remedy it within 30 calendar days of being given written notice from the other party to do so;
(ii) the other party commits a material breach of this Agreement which cannot be remedied under any circumstances;
(iii) the other party passes a resolution for winding up (other than for the purpose of solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect;
(iv) the other party ceases to carry on its business or substantially the whole of its business; or
(v) the other party is declared insolvent, or convenes a meeting of or makes or proposes to make any arrangement composition with its creditors; or liquidator, receiver, administrative receiver, manager, trustee or similar officer is appointed over any of its assets.
b. On termination the Customer shall promptly return all equipment and materials which are the property of the Supplier. In the event that such equipment and/or materials are not returned within 10 business days the Customer grants the Supplier its agents & employees an irrevocable licence at any time to enter any premises where the Supplier's equipment and materials are or may be stored in order to recover them.
13 INTELLECTUAL PROPERTY RIGHTS
a. All intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall be the absolute property of the Supplier, & the Customer shall do all that is reasonably necessary to ensure that such rights vest in the Supplier by executing appropriate instruments as may be requested by the Supplier from time to time.
b. To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the Supplier's use of the Goods Specification. This clause [13.b] shall survive termination of the Contract.
14 FORCE MAJEURE
The Supplier reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Customer (without liability to the Customer) if this is prevented or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Supplier including without limitation, acts of terrorism, protests, riot, civil commotion, fir, explosion, flood, suitable materials, provided that, if the event in question continues for a continuous period in excess of 28 days, the Customer shall be entitled to give notice in writing to the Supplier to terminate the Contract.
15 INDEPENDENT CONTRACTORS
The Supplier & the Customer are contractors independent of each other, neither has the authority to bind the other to any third party or act in any way as the representative of the other, unless otherwise expressly agreed in writing by both parties. The Supplier may in, addition to its own employees, engage sub-contractors to provide all or part of the services being provided to the Customer & such engagement shall not relieve the Supplier of its obligations under this Agreement or any applicable Specification Document.
a. The Supplier may assign the Contract or any part of it to any person, firm or Supplier.
b. The Customer shall not be entitled to assign its rights or obligations or delegate its duties under this Agreement without prior written consent of the Supplier.
If any provision of this Agreement is held invalid, illegal or unenforceable for any reason by any Court of competent jurisdiction such provision shall be severed & the remainder of the provisions herein shall continue in full force & effect as this Agreement has been agreed with the invalid illegal or unenforceable provision eliminated.
The failure by either party to enforce at any time or for any period any one or more of the Conditions herein shall not be a waiver of them or the right at any time subsequently to enforce all the Conditions of this Agreement.
Any notice to be given by either party to the other maybe severed by email, fax, personal service or by post to the address of the other party given in the Specification Document or such other address as such party may from time to time have communication to the other in writing, & if sent by email shall unless the contrary is proved to be deemed to be received on the day it was sent, if sent by fax shall be deemed to be served on receipt of an error free transmissions report, if given by letter shall be deemed to have been served at the time at which the letter was delivered personally or it is sent by post it shall be deemed to have been delivered in the ordinary course of the post.
20 ENTIRE AGREEMENT
This Agreement contains the entire agreement between the parties relating to the subject matter & supersedes any previous agreements, arrangements, and undertakings, proposals, oral or written. Unless expressly provided elsewhere in this Agreement may be varied only by a document signed by both parties.
21 NO THIRD PARTIES
Nothing in this Agreement is intended to, nor shall it confer any rights on a third party.
22 GOVERNING LAW & JURISDICTION
This Agreement shall be governed by & construed in accordance with the law of England and the Parties hereby submit to the exclusive jurisdiction of the Courts of England & Wales.