STANDARD TERMS AND CONDITIONS OF SALE AND SERVICES
Any written quotation given by Technology Design Limited (the “Company”) to a person proposing to order goods and/or services from the Company (the “Purchaser”) shall be valid for 30 days only unless otherwise specified in writing. Thereafter, the Company reserves the right to review the terms of any quotation.
2. ACCEPTANCE AND CANCELLATION
No order is deemed to be accepted nor any contract made with the Company until an acknowledgment of such order or contract has been made by the Company in writing and the Company’s right is reserved to cancel any uncompleted order without liability to the Purchaser. In the event that the Purchaser purports to cancel a contract (the “Contract”) without prejudice to any other right or remedy, the Purchaser shall, on demand, indemnify the Company from and against any loss (including loss of profit), costs, liability, expenses or damage resulting therefrom. The Company shall not be liable for any errors or miscalculations in Purchaser’s orders.
The goods that are the subject of a Contract (the “Goods”) shall be delivered to the Purchaser EX WORKS (Incoterms 2010) the Company’s facility with Purchaser arranging for transportation and transport insurance (provided, however, that if Purchaser fails to arrange for transportation, the Company will choose a method of transportation that it deems appropriate at the expense of the Purchaser). Whilst delivery dates are given by the Company in good faith based upon information available to the Company, such dates are not guaranteed. No delay shall entitle the Purchaser to claim any damages or compensation in respect of any such delay. In the event of a delay exceeding two months, the Purchaser’s sole remedy shall be to rescind the Contract and receive a refund of any monies paid to the Company in connection with that Contract. Where the Purchaser requires carriage of the Goods to their own address or that of a third party, the choice of carrier, cost of carriage and any insurance arrangements shall be the sole responsibility of the Purchaser. Should the Purchaser not specify a preferred carrier then the Company may make arrangements on behalf of the Purchaser but in that event, the Goods will not be despatched until the Company is in receipt of a signed confirmation from the Purchaser to the effect that it approves of the choice of carrier, delivery address, level of insurance cover, timescale for delivery and agrees to reimburse the Company for all costs incurred.
4. TITLE AND RISK
4.1 Title to the Goods shall remain that of the Company until the Company has received payment of all monies due from the Purchaser to the Company under any contract including any interest falling due in accordance with the provisions of Condition 5.
4.2 Until such time as the title to any Goods passes to the Purchaser, the Purchaser shall hold the Goods as the Company’s fiduciary agent and bailee and shall keep the Goods separate from the property of the Purchaser and third parties and properly stored, protected and insured and identified as the Company’s property.
4.3 In the event of the Purchaser becoming insolvent or having a receiver or administrator appointed in respect of it or of the whole or any part of its property or compounding with its creditors or going into liquidation or anything analogous to the foregoing occurs in any legal jurisdiction or in the event of payment for any Goods being overdue then and in any such event it shall be lawful for the Company, its servants, officers or representatives to enter upon the Purchaser’s premises and recover possession of any Goods for which the Company has not been paid and to take away such Goods.
4.4 Until such time as title to any Goods passes to the Purchaser (and provided the Goods are still in existence and have not been resold), the Company shall be entitled at any time to require the Purchaser to deliver up the Goods to the Company, and if the Purchaser fails to do so forthwith, to enter upon any premises of the Purchaser or any third party where the Goods are stored and repossess the Goods.
4.5 In the event of any Goods being sold or otherwise disposed of by the Purchaser before the Company has been paid for them in full, then the entire proceeds of sale thereof and/or any other monies received by the Purchaser or by a factor or by any other person (except a purchaser of goods in good faith without notice of this Condition 4) in connection with the sale, disposal or factoring of the Goods or of invoices dealing with the Goods (whether such monies are received by the Purchaser’s own customers or from factors or other third parties) shall be held in trust for the Company and shall not be mingled with other monies or paid into any overdrawn bank account and shall be at all times identifiable as the Company’s monies unless and until all monies owed by the Purchaser to the Company have been fully paid. The Purchaser shall give written notice of this Condition to any factor or other person except a purchaser of goods in good faith.
4.6 In the event of certain Goods having been paid for by the Purchaser and other Goods not having been so paid for the onus of proof shall be on the Purchaser to show that any Goods remaining in its possession are Goods for which it has paid.
4.7 This Condition 4 does not entitle the Purchaser to return the Goods or to refuse or delay payment on the grounds that the property has not yet passed nor shall it constitute an agency.
4.8 The Purchaser appoints the Company its agent with full authority to execute on its behalf any document or instrument which may be required in order to perfect the Company’s title and interest in the Goods.
4.9 The Purchaser shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Purchaser does so all moneys owing by the Purchaser to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
4.10 For the avoidance of doubt, the risk of loss or damage to the Goods shall pass to the Purchaser on delivery at the delivery point to the carrier or freight forwarder. All freight, insurance, and other shipping charges and expenses from the delivery point, as well as any special packing expenses requested by the Purchaser shall be borne by the Purchaser. If the Goods are lost or damaged in transit the Company’s sole responsibility will be to take reasonable steps to assist the Purchaser’s claim against the carrier for such loss or damage and the Company shall have no other liability. The Purchaser must notify the carrier and the Company within three days of receipt of the Goods in the case of loss or damage or in the case of non-delivery within 14 days of the Company’s advice note.
5. PRICES AND TERMS OF PAYMENT
5.1 The Company’s payment terms are 30% with Purchase Order and 70% on despatch. All payments shall be made in UK Sterling.
5.2 Interest shall run on all monies outstanding after 30 days pursuant to the provisions of the Late Payment of Commercial Debts (Interest) Act 1998 and all regulations made under that Act from time to time in force.
5.3 Payment for the supply of the Goods and/or any services outside the United Kingdom shall be by special arrangement and the terms for payment in these cases shall be as specifically agreed between the parties.
5.4 If the Company is unable to dispatch the Goods when they are ready by reason of the Purchaser’s instructions or circumstances beyond the Company’s control, the Purchaser shall arrange and pay the cost of suitable storage protection and insurance. If the Purchaser is unable to take delivery and arrange for storage the Company shall be entitled to arrange storage and all charges therefore, including insurance or demurrage, shall be payable by the Purchaser. Storage shall be at the Purchaser’s risk. In any of these events, the Company shall be entitled to be paid as though dispatch, shipment or delivery had been made in accordance with the Contract.
5.5 If the Purchaser is required by law to make any deduction or withholding from any payment to the Company on account of any tax, then the Purchaser will:
5.5.1 give notice to the Company of any such requirement or any change in such requirement as soon as the Purchaser becomes aware of it and ensure that the deduction or withholding is made and that it does not exceed the minimum legal requirement;
5.5.2 pay any such tax in accordance with applicable law and before the date on which interest or penalties arise;
5.5.3 not later than the payment under Condition 5.5.2 pay to the Company such increased sum as will result, after the deduction or withholding of the tax (and after taking account of any further deduction or withholding which is required to be made as a consequence of the increase), in the receipt by the Company of a net amount equal to the full amount which would otherwise have been received by it had no such deduction or withholding been required; and
5.5.4 promptly forward to the Company evidence of the deduction or withholding which has been made, including all receipts or other official documentation which is issued by the relevant tax authority, provided that if the Company determines, in its absolute discretion, that it has received a tax benefit (in the form of a credit against or relief or remission for, or repayment of any tax paid or payable by it) by reason of any deduction or withholding in respect of which the Purchaser has made an increased payment under this Condition, the Company shall pay to the Purchaser (to the extent that the Company can do so without prejudicing the amount of such benefit or repayment and the right of the Company to obtain any other benefit, relief or allowance which may be available to it) such amount, if any, as the Company in its absolute discretion shall determine will leave the Company in no worse position than the Company would have been if the deduction or withholding had not been required.
6. TAXES AND OTHER CHARGES
The amount of taxes or Government charges upon sale of the Goods and/or the supply of any services shall be added to the price and paid by the Purchaser. Prices do not include any sales, use, or privilege taxes, value-added taxes, excise or similar taxes, custom duties, shipping, handling, insurance, brokerage, or other related charges levied by any jurisdiction pertaining to the goods or services, other than taxes computed on the basis of the net income of the Company, which shall be paid by the Purchaser.
7. USE OF THE GOODS
The Purchaser shall be responsible for and agrees to train and instruct users of the Goods on the safe and proper use of the Goods and the Purchaser shall ensure that, where the Goods are accompanied by documentation, all persons using the Goods shall read such documentation. Further, the Purchaser shall be responsible for and agrees to maintain in good working order the safety features in respect of the Goods. It is understood and agreed that failure by the Purchaser to conform with these requirements obviates any responsibility on the Company for operator safety and the Purchaser agrees to indemnify and keep the Company indemnified from and against any liability, damages, costs and expenses, including reasonable legal fees and expenses, which may be incurred by the Company as a result of the Purchaser’s failure to comply with the requirements of this Condition.
8. WARRANTIES AND LIABILITY
8.1 For a period of twelve (12) months following the date of delivery, and subject to the other provisions of these terms and conditions, the Company warrants that all new Goods that are both (a) manufactured by the Company and (b) purchased directly from the Company or an authorized distributor of the Company shall be free from material defects in materials and workmanship. Purchaser’s sole and exclusive remedy and the Company’s sole and exclusive obligation, in the event of any failure of Goods to comply with this warranty shall be for the Company to, at its sole option, repair or replace such product free of charge. In no event shall the Company be liable for ordinary wear and tear. The Company does not provide any warranty for third-party parts, components, or products. The foregoing warranty shall not apply to any Goods failure caused in whole or in part by (i) Purchaser’s failure to operate, maintain, or service the Goods in accordance with the Company’s documentation or, if there is none, good trade practice regarding the same, (ii) any alteration, modification, or repair made to the Goods other than by the Company, (iii) use of the Goods for a purpose other than that for which it is intended, (iv) the Company following Purchaser’s drawing, design, or specifications, (v) fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions, or (vi) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
8.2 In order to get the benefit of the foregoing warranty, Purchaser must immediately inspect the products upon receipt and notify the Company in writing immediately after discovering any defect or shortcoming. Purchaser shall not ship products back to the Company for any reason without the Company’ prior written consent. Notwithstanding such consent, the Company reserves the right to inspect the products at its facility and to refuse, at its sole discretion, to accept the return of any item if the Company determines that the products’ warranty is not applicable for the reasons set forth above. Any defective products or parts forwarded by Purchaser to the Company for repairs or replacement, shall be carriage paid and at Purchaser’s risk. Purchaser must clearly indicate the nature of the defect or shortcoming.
8.3 The Company shall not be liable for any Goods’ failure to comply with the warranty set out herein if Purchaser makes any further use of such Goods after giving notice in accordance with this Section 8.
8.4 The Company warrants that it will use reasonable endeavours to ensure that any services are performed with reasonable care and skill.
8.5 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by any rule of law are excluded to the fullest extent permitted by law, including (without limitation) all warranties, conditions or other terms implied by the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982.
8.6 To the extent permitted by law, the Company shall not be liable whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any special, incidental, consequential or indirect damages or for loss of goodwill or business profits, lost revenue, work stoppage, computer failure or malfunction, or for any and all other exemplary or punitive damages arising hereunder or from the use of Goods, including, without limitation, any such loss or damage relating to personal injury or property damage, even if the Company has been advised or was aware of the possibility of such loss or damages. Except in the case of death or personal injury caused by the Company’s negligence or for any matter in respect of which it would be unlawful for the Company to exclude or restrict its liability, the Company’s total aggregate liability to Purchaser for any and all other damages, losses or liabilities arising hereunder or from the Goods, whether in contract, tort (including negligence), breach of statutory duty or otherwise, shall not exceed the amounts actually received by the Company from Purchaser with respect to the Goods giving rise to the liability. Purchaser shall indemnify the Company for any liability arising from Purchaser’s (including its employees’ and agents’) use of the Goods sold (directly or indirectly) by the Company.
8.7 The remedy obligations of this Section 8 shall apply to any replacement products or parts only for the same duration of time as for the replaced products or parts.
8.8 THE FOREGOING EXPRESS WARRANTIES ARE THE EXCLUSIVE TERMS AVAILABLE TO PURCHASER AND EXTEND ONLY TO THE ORIGINAL CUSTOMER OF THE COMPANY OR THE COMPANY’S AUTHORIZED DISTRIBUTOR, AS THE CASE MAY BE. THE CORRECTION OF ANY DEFECT IN OR FAILURE OF PRODUCTS BY REPAIR OR REPLACEMENT IN ACCORDANCE WITH THE COMPANY’S POLICIES AS DESCRIBED HEREIN SHALL BE THE COMPANY’S SOLE AND EXCLUSIVE OBLIGATION AND THE SOLE AND EXCLUSIVE REMEDY OF PURCHASER FOR ANY AND ALL LOSSES, DELAYS OR DAMAGES RESULTING FROM THE PURCHASE OR USE OF COMPANY PRODUCTS. OTHER THAN THE LIMITED WARRANTY SPECIFICALLY STATED HEREIN, THE COMPANY DISCLAIMS, TO THE EXTENT PERMITTED BY LAW, ALL WARRANTIES WITH RESPECT TO COMPANY PRODUCTS, INCLUDING THE PERFORMANCE THEREOF AND ANY SERVICES PROVIDED TO PURCHASER, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE, NON-INFRINGEMENT AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
9. INTELLECTUAL PROPERTY RIGHTS
Purchaser shall not copy the Company’s software or any related Documentation, other than as is necessary for back-up copies. Purchaser shall not licence or assign any rights in the Company’s software. The Company grants to Purchaser a limited, nonexclusive license to use the software provided with the Goods solely for the purpose of operating the Goods in accordance with the Company’s written Documentation.
Notwithstanding that title to the Goods may pass to Purchaser, the Company shall remain the exclusive owner of all intellectual property rights of whatever nature including, without limitation,
copyrights, patents and patentable inventions, know-how, trade secrets, trademarks and design rights (whether registered, registrable or otherwise) embodied in or otherwise relating to the Goods (including any software contained therein). Other than as permitted by applicable law, Purchaser shall not reverse engineer the Goods or any part thereof. Purchaser shall not remove any proprietary notices and/or branding contained in or otherwise affixed to the Goods.
Where any designs or specifications have been supplied by the Purchaser, the Purchaser warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party and indemnifies the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patent, copyright, design, trade mark or other intellectual property rights of any other person which results directly or indirectly from the Company’s use or application of the Purchaser’s specification. Use of any software comprised within the Goods is subject to the terms of the Company’s software licence.
10. FORCE MAJEURE
The Company shall not be liable to the Purchaser for any failure or delay in performance of the Contract if it is due to any event beyond the reasonable control of the Company including, without limitation, war, industrial disputes, fire, flood, adverse environmental conditions and national emergencies and the Company shall be entitled to a reasonable extension of time for performing such obligations.
These Conditions, each Contract, and any dispute arising hereunder or thereunder shall be governed by and construed according to the laws of England and Wales governing such agreements, without regard to conflicts-of-law principles. The sole and exclusive jurisdiction and venue for any litigation arising out of these Conditions or each Contract shall be an appropriate court in Manchester, England.
12.1 These Conditions apply to all contracts entered into by the Company, contain the entire terms and conditions of the Contract and operate to displace any conditions imposed or sought to be imposed by the Purchaser. No modification or variation of them shall be binding unless executed in writing by the Company.
12.2 No rights or benefits are, or are intended to be, conferred on any third party under the Contracts (Rights of Third Parties) Act 1999.
12.3 In addition to the rights and remedies contained in these Conditions, the Company shall have all the rights and remedies afforded to a seller pursuant to any rule of law. All rights and remedies of the Company under the Conditions shall be cumulative and not in the alternative.
12.4 No failure or delay by the Company to exercise any right, power or remedy will operate as a waiver of it nor will any partial exercise preclude any further exercise of the same, or of some other right, power or remedy.
12.5 If any provision of these Conditions shall be held to any extent to be illegal or unenforceable, that provision shall to that extent be deemed not to form part of these Conditions and the enforceability and validity of the remainder of these Conditions shall not be affected.
12.6 Reference in these Conditions to any statute includes any re-enactment or modification of such statute.