(i) All orders are accepted by the Company from the Buyer on the following terms, conditions and exceptions and no other terms, conditions or warranties shall apply unless agreed to in writing by the Company.
(ii) References to Incoterms are references to the edition of Incoterms published by the International Chamber of Commerce in force at the date when the contract is made and expressions used in any contract shall have the meanings ascribed to them by Incoterms as modified by these Conditions of Sale.
2. Prices and Payment
(i) All prices, UK and Export are subject to adjustment without notice. The contract price shall be the price current at the date of despatch of the goods.
(ii) In the case of U.K. sales payment shall be effected by cash, cheque or credit transfer by the end of the month following the date of invoice. In the case of Export sales, payment shall be made at such time and in such manner as expressed in the contract and the Company reserves the right at any time to request payment by Confirmed Irrevocable Letter of Credit confirmed by an approved bank in the U.K.
(iii) Any bank or other charges on negotiable instruments in respect of Export payments are payable by the customer.
(iv) The Company reserves the right to charge interest on overdue payments at 15% per annum from the date they first become overdue. Interest is at the latest charged from the normal due date + 120 days for UK customers or the due date + 150 for export customers.
3. Licences, Taxes and Other Charges
(i) The placing of an order with the Company is deemed to constitute a warranty and representation by the Buyer that every applicable licence (import or otherwise), foreign exchange control authorisation or any other authorities that may be required in connection with the goods supplied have been or will be duly obtained by and at the expense of the Buyer.
(ii) Unless otherwise agreed in writing the contract price does not include Value Added Tax ("VAT") or any other tax or levy on the supply or importation of the goods which shall be charged extra. Insofar as the Buyer is situated in another member state of the European Community, with effect from 1st January 1993 and until completion of the Internal Market of the European Community, VAT will be added to the contract price automatically unless the Buyer provides its VAT registration details and all other appropriate information to the Company.
(iii) The Basic Tax Point for VAT (where applicable) is the invoice date.
4. Carriage, Risk and Property
(i) Details of carriage terms are given in the Company's current price list.
(ii) In the case of U.K. sales, unless otherwise agreed, risk of loss or damage to the goods shall pass to the Buyer when the goods are handed to the carrier for delivery to the Buyer. Subject thereto, where goods are to be carried at the cost of the Company, the Company will bear the risk of loss or damage in transit provided that the Company shall have received written notification of such loss or damage within five days of the date of despatch.
(iii) In the case of Export sales, unless otherwise agreed, Incoterms shall apply and risk of loss or damage to the goods shall pass to the Buyer in accordance with the terms of the shipping documents. The Company does not normally insure the goods during transit abroad.
(iv) Where the goods are to be collected by the Buyer, the Company shall be entitled to treat the contract as repudiated, and re-sell the goods, should the Buyer fail to collect the goods within 14 days of notification by the Company that they are ready for despatch.
(v) (a) Notwithstanding the passing of risk, the Company retains ownership of the goods the legal and equitable title in which shall not pass to the Buyer until the Company has received payment of the price of all of the goods (whether or not the goods are delivered in instalments and some have been paid for by the Buyer) and until such time the Buyer shall hold the goods in a fiduciary capacity for the Company and in particular the Buyer:
(1) shall insure the delivered goods against any loss or damage with an insurance office of repute;
(2) shall store the delivered goods separately or in some other way ensure that they are readily identifiable as the property of the Company;
(3) shall deliver the goods to the Company forthwith on demand and if the Buyer fails to do so the representatives of the Company shall be entitled to enter upon the Buyer's premises where the delivered goods are or are thought by the Company to be stored for the purpose of repossessing them (including without limitation removing or detaching them from the New Goods as defined in Clause 4(v)(d) and subsequently reselling them;
(4) shall keep and retain the delivered goods free from any charge lien or other encumbrance thereon.
(b) Upon any resale of any of the goods by the Company pursuant to Clause 4(v)(a)(3) if the proceeds of sale exceed the amount of all sums due to the Company from the Buyer the Company shall pay the excess to the Buyer having deducted the cost and expense of the repossession and re-sale of the goods and any damages which the Company has suffered as a result of any breach of the contract by the Buyer;
(c) Until the Company has received full payment of all the sums due to the Company from the Buyer provided always that the Buyer continues to trade and is not insolvent nor enters into liquidation whether compulsorily or voluntarily nor becomes subject to an administration order nor has a receiver appointed over all or any part of its assets nor compounds with nor convenes a meeting of its creditors nor takes or suffers any similar action in consequence of a debt the Buyer shall be entitled to offer for sale and sell the goods in the ordinary course of business as principal for its own account and not as agent for the Company. Where any of the goods is sold to a third party before title to it has passed to the Buyer, that sale will constitute a sale by the Buyer of the Company's property.
(d) If the Buyer incorporates the goods within other equipment or products ("the New Goods") provided that the goods remain a readily identifiable and removable part of the New Goods the provisions of Clauses 4(v)(a) and 4(v)(b) shall apply.
(e) The provisions of this Clause 4(v) shall survive the termination of the contract for whatever reason and in particular but without limitation termination of the contract by the Company by the acceptance of any repudiation of the contract by the Buyer.
5. Delay and Force Majeure
(i) Whilst every effort will be made to comply with any quoted dates given for dispatch or delivery, time shall not be of the essence and the Company shall not be liable for any loss or damage caused by delay or failure by the Company in obtaining goods from the Company's own suppliers, or any loss or damage caused by strikes, lockouts, trade disputes, transport delays, shortages of material, breakdowns, fire, accidents and/or any causes whatsoever beyond the company's control. Such delay shall not constitute a breach or repudiation of the contract.
(ii) In the event of performance of the contract being frustrated or prevented by reason of war, civil commotion or the operation of any statute, order, regulation or promulgation made by any statutory or duly constituted authority whether in the UK or elsewhere, the Buyer shall accept and pay for all goods delivered, work executed and expenses incurred in connection with the contract up to the date of such event, and the Company shall from such date be under no further liability under the contract.
(i) The specifications of the goods shall be those stated in the Company's current catalogue.
(ii) Whilst specifications are considered to be correct at the date of printing the Company reserves the right to change specifications of the goods and their packing and presentation without prior notification having regard to the Company's continuing programme of research and development.
(iii) Original equipment part numbers are quoted for reference purpose only and are not intended to infer that equivalent replacements are used as original equipment.
(i) Subject to the conditions set out below and Clause 4(ii), the Company warrants that the goods will correspond to their specification and will be free from defects in materials and workmanship for a period of 12 months from the date of delivery, or in the case of goods which have a shorter working life as determined by the Company, three months from the date of delivery ("The Warranty Period").
(ii) If the Company receives written notice during the Warranty Period from the Buyer of any breach of the above warranty then the Company shall at its own expense and within a reasonable time after receiving such notice repair, or at its option replace the goods or otherwise remedy such defect. The Buyer will, at the request of the Company, return such defective goods to the Company carriage paid.
(iii) The Company shall be under no liability under the above warranty:
(a) in respect of any defect in the goods arising from any drawing, design or specification supplied by the Buyer;
(b) in respect of any defect arising from fair wear and tear, wilful damage, negligence of the Buyer, abnormal working conditions, failure to follow the Company's instructions (whether oral or in writing), misuse or alteration or repair of the goods without the Buyer's approval, or improper storage.
(c) where the goods are transported to the Buyer at the Buyer's risk and the defect occurred during transit;
(d) in respect of non-Vapormatic branded goods. In that case the buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.
(iv) The Company shall have no liability under the above warranty other than under Clause 7(ii) above. If the Company fails to comply with such obligations its liability for such failure shall be limited to the contract price of the goods.
(v) The express terms of these Conditions of Sale are in lieu of all warranties, conditions, terms, undertakings, and obligations implied by statute, common law, custom, trade usage, course or dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law. The United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall not apply to orders for goods.
Except in respect of injury to or death of any person caused by the Company's negligence, or in respect of the Company's liability under the Consumer Protection Act 1987 for any injury to or death of any person or loss of or damage to property intended for private use caused by a defect in the goods the Company shall not be liable to the Buyer for any loss or damage which arises out of or in connection with the supply of the goods or their use or resale by the Buyer, except as expressly provided in these Conditions of Sale.
These Conditions of Sale shall be subject to and shall be construed in accordance with English law and the High Court of Justice in London shall have non-exclusive jurisdiction over any dispute which may arise hereunder unless the parties agree otherwise in writing.