- Definitions
1.1 In these Conditions, unless the context requires otherwise:
‘Business Day’ means Monday to Friday excluding public bank holidays;
‘Buyer’ means the person who enters into a Contract with the Company under these Conditions to purchase Goods and/or Services from the Company;
‘Company’ means Enasec Limited (company registration number 06227234);
‘Contract’ means a contract entered into between the Company and the Buyer, for the supply of Goods and/or Services to the Buyer incorporating these Conditions;
‘Delivery’ means the point that delivery of the Goods to the Buyer takes place which means the delivery date notified to the Buyer by the Company where delivery is to take place at the Company’s premises, and where the Company transports or procures transportation of the Goods to other premises as agreed in writing with the Buyer means the point at which the Goods arrive at such premises before the unloading of such Goods from the delivery vehicle;
‘Due Date’ means the due date for payment of the Price as described in clause 3.4
‘Goods’ means the goods set out in the Company’s Quotation;
‘Order’ means an order made by the Buyer to the Company to buy Goods set out in a Quotation and incorporating any specifications or special instructions requested by the Buyer;
‘Price’ means the price for the Goods and/or Services as set out in the Quotation as may be amended in accordance with clause 3.1 and any other amounts payable under these Conditions;
‘Quotation’ means a quotation provided by the Company to the Buyer; and
‘Services’ means the supply of installation and/or commissioning of the Goods where required by the Buyer as set out in the Quotation
1.2 The headings in these Conditions are for convenience only and shall not affect their meaning.
- Formation of the Contract
2.1 These Conditions shall apply to all Contracts entered into between the Company and the Buyer to the exclusion of any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document.
2.2 All descriptions and particulars furnished in price lists, catalogues and other promotional documents issued by the Company are for information purposes only and although every effort is made to ensure their accuracy such documents are not intended to be legally binding.
2.3 The Buyer acknowledges and accepts that if the Buyer wishes to purchase certain goods a minimum quantity or minimum value of such goods (to be determined at the discretion of the Company) must be included in any Order.
2.4 Any Quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
2.5 All Orders for Goods and/or Services made by the Buyer shall be deemed to be an offer by the Buyer to purchase the Goods and/or Services subject to these Conditions.
2.6 No Order made by the Buyer shall be deemed accepted by the Company until a written confirmation of order is issued by the Company.
2.7 The quantity and description of the Goods shall be those set out in the Company’s Quotation and the Buyer shall be responsible for ensuring the accuracy of the Goods as set out in the Quotation before making an Order.
2.8 Any changes required by the Buyer to the quantity and description of the Goods (as set out in a Quotation) or to any specifications or special instructions accepted by the Company in accordance with clause 2.6 may result in a change to the Price and will only be deemed accepted by the Company if confirmed in writing by the Company.
2.9 Unless otherwise agreed in writing, Delivery of the Goods under the Contract shall take place Ex Works at the Company’s premises.
2.10 Where Services are to be supplied under the Contract, the Buyer shall ensure that a clear and safe working environment is provided and that all necessary services are connected to the premises, at the Buyer’s expense, where the Goods are to be installed and/or commissioned, including (without limitation) electricity supply to the correct voltage, mains water supply and any other services notified by the Company to the Buyer.
2.11 Any Quotations given in respect of Services are subject to revision after inspection of the Company. Unless otherwise stated any Quotation is given on the basis of the Services being carried out continuously and without interruption from time of commencement to completion. Should any such Services be delayed or discontinued the Buyer shall be responsible for all costs and expenses incurred by either party, including (without limitation) where such delay arises from the failure of the Buyer to comply with its obligations under clause 2.10.
2.12 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Company.
2.13 No Order which has been accepted by the Company may be changed or cancelled by the Buyer except with the agreement in writing of the Company and on terms that the Buyer shall indemnify the Company 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 Company as a result of such changes or cancellation.
- Price and payment
3.1 The Price for the Goods and/or Services shall be the Company’s quoted price set out in the Quotation or if there is no quoted price the price stated in the Company’s current price list subject to alterations notified by the Company at any time as may be necessary as a result of statutory obligation, any increases in manufacturers’ prices, or any cause beyond the control of the Company.
3.2 Unless otherwise stated, the Price for the Goods is exclusive of any onward delivery costs from the Company’s premises and any special packaging, moulds, dyes or tools which if required will carry an additional charge payable by the Buyer.
3.3 Unless otherwise stated, the Price for the Goods does not include the Price for any Services, which if required will carry an additional charge payable by the Buyer.
3.4 Unless otherwise stated Prices are exclusive of VAT which shall be due at the rate ruling on the date of the Company’s invoice.
3.5 When requested by the Company, any Orders made by new Buyers based in the United Kingdom must be accompanied by a credit application form and payment in full of the Price.
3.6 Save where full payment has been made in advance in accordance with clause 3.5, payment of the Price and VAT shall be due and payable in cleared funds within thirty (30) days of the date of the Company’s invoice in respect of Buyers based in the United Kingdom and the date notified by the Company to the Buyer in respect of Buyers based outside the United Kingdom (“the Due Date”), notwithstanding that Delivery may not have taken place.
3.7 If the Buyer fails to make any payment on the Due Date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
3.7.1 cancel the contract or suspend any further deliveries to the Buyer;
3.7.2 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 Company) as the Company may think fit (notwithstanding any purported appropriation by the Buyer); and
3.7.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid at the rate of 4 per cent per annum above Bank of Scotland’s base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
- Warranties and liability
4.1 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions, or other terms implied by statute or common law are excluded to the fullest extent permitted by law. For the avoidance of all doubt the Company gives no warranty as to the fitness of the Goods for any particular purpose whether or not such purpose is known to the Company.
4.2 Subject to the conditions set out below the Company warrants that the Goods will correspond with their specification and will be of a satisfactory quality within the meaning of the Sale and Supply of Goods Act 1994 at the time of delivery and that the Services will be performed to the standards reasonably expected in the industry.
4.3 The Company will transfer to the Buyer the benefit of any manufacturers’ warranty or guarantee (if any) given to the Company.
4.4 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 at the time of delivery shall (whether or not delivery is refused by the Buyer) be notified to the Company and the carrier within 3 days from the date of delivery and the Goods and their original packaging should be retained for inspection by the Company and/or the carrier. If delivery is not refused, and the Buyer does not notify the Company and the carrier accordingly and/or does not provide the Goods and packaging for inspection, the Buyer shall be deemed to have accepted the Goods as conforming in all respects with the Contract.
4.5 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet the specification is notified to the Company and the carrier in accordance with clause 4.4 the Company shall be entitled to replace the Goods (or the part in question) free of charge or, at the Company’s sole discretion, refund to the Buyer the Price of the Goods (or proportionate part of the Price), but the Company shall have no further liability to the Buyer.
4.6 The Company shall not be liable to the Buyer in respect of defects in the Goods arising in the following circumstances:
4.6.1 any defect in the Goods where such defect is the result of inaccurate, inadequate or defective instructions and specifications from the Buyer; and/or
4.6.2 any defect arising from wilful damage and/or negligence by the Buyer, abnormal usage conditions, misuse or alteration or repair of the Goods without the Company’s approval.
4.7 Subject to clause 4.10:
4.7.1 the Company 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 consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use by the Buyer and/or the supply of Services, except as expressly provided in these Conditions; and
4.7.2 the Company’s total liability to the Buyer in contract, tort (including negligence or breach of statutory duty) misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Price.
4.8 The Company shall not be liable to the Buyer by reason of any delay in performing, or any failure to perform any of the Company’s obligations under the Contract, if the delay or failure was due to any cause beyond the Company’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Company’s reasonable control: Act of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulation, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery; power failure or breakdown in machinery.
4.9 Notwithstanding any other clause of these Conditions the Company will not accept return of or be liable for any Goods returned to the Company by the Buyer (for any reason whatsoever) which are not packaged (using the exact same packaging) in the same way as when dispatched for delivery by the Company unless otherwise expressly agreed in writing by the Company.
4.10 Nothing in the Conditions shall limit or exclude any liability of the Company for personal injury or death arising from the negligence of the Company or its employees or for fraudulent misrepresentation.
- Delivery
5.1 Any dates quoted for delivery of the Goods and/or Services are approximate only and the Company shall not be liable for any delay in delivery of the Goods and/or Services howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Company in writing. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
5.2 If the Company delivers to the Buyer a quantity of Goods up to 10% more or less than the quantity the Company accepted to supply the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Price.
5.3 Where the Goods are to be delivered in instalments each delivery shall constitute a separate contract and failure by the Company 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.
5.4 If the Buyer fails to take delivery of the Goods or fails to give the Company adequate delivery instruction at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Company’s fault) then, without prejudice to any other right or remedy available to the Company, the Company may:
5.4.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of the storage; or
5.4.2 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.
5.5 Unless otherwise agreed in writing, where Goods are to be exported outside the United Kingdom the Buyer shall be responsible for obtaining at the Buyer’s cost any export licences required for such export.
- Title and risk
6.1 Risk of damage to or loss of the Goods shall pass to the Buyer on Delivery, which for the avoidance of doubt means that where the Buyer collects or procures collection of the Goods from the Company’s premises the risk in the Goods will have passed to the Buyer before the loading of the Goods into any vehicle and where Delivery is to take place at premises other than the Company’s premises the risk in the Goods will have passed to the Buyer before unloading the Goods from the delivery vehicle. The Buyer is advised to insure the Goods accordingly.
6.2 Notwithstanding Delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods supplied under the Contract shall not pass to the Buyer until the Company has received in cash or cleared funds payment in full of the Price of the Goods and Services (where applicable) and all other goods and/or services agreed to be sold by the Company to the Buyer for which payment is then due.
6.3 Notwithstanding payment made by the Buyer for any special moulds, dyes or tools in accordance with clause 3.2, title in such moulds, dyes or tools shall at all times remain with the Company.
- Retention of Title
7.1 Until such time as the property in the goods supplied under the Contract passes to the Buyer, the Buyer shall hold such goods as the Company’s fiduciary agent and bailee, and shall keep such goods (at no cost to the Company) separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Company’s property.
7.2 Until such time as the property in the goods supplied under the Contract passes to the Buyer the Company shall be entitled at any time to require the Buyer to deliver up such goods to the Company 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 such goods.
7.3 The Buyer shall not, without the consent of the Company, be entitled to pledge or in any way charge by way of security for any indebtedness any goods which remain the property of the Company, but if the Buyer does so all moneys owing by the Buyer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
- Default of the Buyer
8.1 Without prejudice to any other rights of the Company under these Conditions, the Company shall be entitled to treat the Contract as cancelled by the Buyer with immediate effect and without notice on the terms specified in clause 2.13 in the following circumstances:
8.1.1 The Buyer makes any voluntary arrangement 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
8.1.2 An encumbrancer takes possession, or a receiver, administrator, administrative receiver or manager is appointed, over the whole or any part of the property or assets of the Buyer; or
8.1.3 The Buyer ceases, or threatens to cease, to carry on business; or
8.1.4 The Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
8.2 If this clause applies then without prejudice to any other right or remedy available to the Company, the Company shall be entitled to exercise any of its rights under clause 7 of these Conditions.
- Miscellaneous
9.1 Save where otherwise stated in these Conditions, the Contract is between the Company and the Buyer as principles and shall not be assignable by the Buyer without the consent of the Company.
9.2 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 principle place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
9.3 No waiver by the Company of any breach of these Conditions by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
9.4 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 provision in question shall not be affected thereby.
9.5 Unless otherwise stated, nothing in the Contract shall create any rights for third parties under the Contracts (Rights of Third Parties) Act 1999.
9.6 All Contracts shall be governed by the laws of England and be subject to the exclusive Jurisdiction of the Courts of England and Wales.