1. INTERPRETATION
1.1 IN THESE CONDITIONS:
"the Company" means Ezurio Limited
"Conditions" means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Customer and the Company.
"Contract" means a contract for the sale or provision and purchase of supplies and any contract will incorporate the Conditions.
"Customer" includes any person, firm or company whose order for the Supplies is accepted by the Company or who purchases or contracts for the purchase of the Supplies from the Company.
"Delivery" has the meaning described in Condition 6.
"Delivery Address" means any address for delivery of the supplies agreed in Writing or (failing which) at the Company's discretion any address for Delivery given in the Company's quotation or any address or business premises used by the Customer.
"Indemnified Matters" includes all liability, actions, proceedings, claims, demands, injury, loss, (including consequential and indirect loss) damage, damages, costs and expenses.
"Intellectual Property Rights" means intellectual and industrial property rights of all kinds including know-how, patent, trade marks, service marks (whether registered or unregistered), registered design, copyright and unregistered design rights.
"Specifications" includes drawings, artwork, designs, plans, photographs, models, patterns, samples, data and technical information of every description whether written oral or three dimensional.
"Supplies" means any goods, parts or components which the Company supplies or provides for the Customer.
"Writing" includes telex, cable, facsimile transmission and comparable means of communication.
"Working Days" means Monday to Friday inclusive excluding statutory bank holidays and Christmas Day and Easter Good Friday
1.2 The headings in these Conditions are for convenience only and will not affect their interpretation.
1.3 Statutory and other references in these Conditions are intended to refer to current statutes and rules as amended from time to time.
2. BASIS OF CONTRACT
2.1 The Company will sell and the Customer will purchase the Supplies in accordance with any order of the Customer which is accepted by the Company subject to these Conditions, which will govern the Contract to the exclusion of any other terms and conditions.
2.2 No variation to these Conditions will be binding unless agreed in Writing.
2.3 The Company's employees or agents are not authorised to make any representations about the Supplies unless confirmed by the Company in Writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of, any unconfirmed representations.
2.4 Any recommendation given by the Company or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Supplies which is not confirmed in Writing by the Company is followed entirely at the Customer's own risk, and the Company will not be liable for any such recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any literature, document or information issued by the Company will be correctable without any liability on the part of the Company. The Company reserves the right to discontinue without notice the supply of any item contained in any of its catalogues.
3. ORDERS AND SPECIFICATIONS
3.1 The Customer will be responsible to the Company for the accuracy of the terms of any order (including all Specifications) it submits and for giving the Company any necessary information relating to the Supplies within sufficient time to enable the Company to perform the Contract in accordance with its terms.
3.2 Subject to the Conditions the quantity, quality and description of and any Specification for the Supplies will be as agreed or accepted by the Company in Writing.
3.3 If the Supplies are to be manufactured or any process is to be applied to the Supplies by the Company in accordance with the Customer's Specification, the Customer will indemnify the Company against all loss, 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 Intellectual Property Rights of any other person which results from the Company's use of the Customer's Specification.
3.4 The Company will not be obliged to provide test or performance certificates unless agreed in Writing. Costs incurred in carrying out testing or inspection will be paid by the Customer in addition to the price of the Supplies.
3.5 The Company reserves the right without notice to make any changes in the Specification of the Supplies which are required to conform with any applicable safety or other statutory requirements or which do not materially affect their quality or performance.
3.6 No Specification or order may be amended varied or cancelled by the Customer except with the Company's written agreement and the Customer will 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 amendment variation or cancellation.
4. CUSTOMER RETURNS
4.1 The Customer is legally bound to purchase the Supplies comprised in the Contract and return of the Supplies will not be accepted without prior written consent of an authorised representative of the Company. In no event will returns or cancellation be accepted on any Supplies made to the Customer's specification.
4.2 The Customer will be responsible for the packing and carriage of any Supplies returned for any reason in the original packaging and complete with all accessories manuals and all other documents. Supplies returned will remain at the risk of the Customer until certified as safely received by the Company. The Company may in any event refuse to accept back any Supplies which have deteriorated or been damaged during return or after risk has passed to the Customer or which are incomplete.
5. RISK
5.1 Risk in respect of the Supplies will pass to the Customer upon whichever will first occur of the following events:-
5.1.1 Delivery;
5.1.2 any event as contained in condition 7;
5.1.3 if at the Customer's request the Company defers Delivery or retains possession of the Supplies available for Delivery at the date of such request.
5.2 The Customer will insure the Supplies against loss or damage in their full invoice price in the joint names of the Company and the Customer from Delivery until payment in full has been made.
6. DELIVERIES
6.1 Dates for Delivery or despatch are estimated only and not binding on the Company. Time will not in this respect be of the essence of the Contract. On reasonable notice the Supplies may be delivered by the Company in advance of the quoted Delivery date.
6.2 The Company may make Delivery of the Supplies by instalments. A Contract for scheduled deliveries or by instalments is for the purchase of all the Supplies comprised in the Contract. The Customer may not refuse to take or accept Delivery of any instalment or treat a Contract as repudiated on account of any alleged failure, shortage or defect in any instalment. If the Customer fails to take Delivery of an instalment the Company will not be bound to make up such instalment according to any informal or binding schedules.
6.3 Delivery will be deemed to take place when possession or control of the Supplies is passed by the Company to the carrier.
6.4 If the Company or its carrier is transporting the Supplies the Company will deliver them to a Delivery Address and the Customer will accept Delivery upon arrival. The Customer will ensure that adequate means of access are available and will provide all necessary facilities at the Delivery Address for unloading the Supplies and will indemnify the Company from and against the Indemnified Matters under or in respect of access and unloading operations.
6.5 When the Customer arranges carriage the Customer will procure that Delivery takes place as soon as possible after the Company has given notice that a consignment is ready and in any event within four days of such notice and that the transport is suitable in all respects to carry the Supplies. The Company may without liability withhold Delivery if in its opinion the transport is unsuitable.
6.6 The Company will be deemed to have fulfilled its contract if volumes delivered are within a tolerance of 10% above or below the quantity ordered and the Customer will pay for the actual quantity delivered at the contract price.
6.7 A receipt or Delivery note signed by a person duly authorised by the customer will be conclusive proof of the date and time of Delivery.
7. FAILURE TO ACCEPT DELIVERY
7.1 If the Customer fails to accept or take Delivery of the Supplies or any instalment or if there is no representative of the Customer at the Delivery Address to accept Delivery or if the Customer does not collect the Supplies within four days of notice:-
7.1.1 the Company (and without prejudice to any rights against the Customer) may store the Supplies at the risk of the Customer and the Customer will pay upon demand the reasonable storage costs of the Company and all other expenses involved including insurance (at the Company's option), and the Supplies may be re-invoiced at the rates ruling at the date of actual despatch;
7.1.2 the Company may deliver by itself or by its agent at the cost of the Customer any Supplies which the Customer has failed to collect within four days of notice;
7.1.3 the Company may sell the Supplies at the best price readily obtainable and (after deducting all reasonable expenses) account to the Customer for the excess over the Contract price or charge the Customer for any shortfall below the Contract price;
7.1.4 the Company may deposit the Supplies at or near the Delivery Address which will constitute due Delivery;
7.1.5 risk in the Supplies will pass to the Customer forthwith.
8. PRICES
8.1 The price of the Supplies will be the Company's quoted prices or where no price has been quoted (or is no longer valid) the Contract price will be at the Company's rates ruling at the date of Delivery.
8.2 Prices are subject to the addition of VAT and all other taxes and duties at the rates ruling at the date of Delivery. The Customer will pay or reimburse any tax, levy or charge of whatever nature imposed by the authorities in any foreign country.
8.3. The Company will package the Supplies at its discretion and as it considers appropriate for the Supplies and the method of transportation. Any special packaging will be at the Customer's expense and may delay Delivery.
8.4 Prices in currencies other than pounds sterling are subject to increases based on the exchange rate applicable on the date of payment.
9. PAYMENT
9.1 The Company may invoice the Customer on or at any time after Delivery of the Supplies or any instalment unless the Supplies are to be collected by the Customer or the Customer fails to take Delivery of the Supplies, in which event the Company will be entitled to invoice the Customer for the price at any time after the Company has notified the Customer that the Supplies are ready for collection or the Company has tendered the Delivery of the Supplies.
9.2 Unless otherwise agreed in Writing the Customer will pay the price of the Supplies without any deduction within 30 days after the date of the Company's invoice, notwithstanding that Delivery may not have taken place or that property in the Supplies has not passed to the Customer. The time of payment will be of the essence of the Contract.
9.3 The Company may at any time require the Customer to provide security for payment or withdraw any credit facilities and/or require the Customer to make payment in cash (and then payment will be legally due immediately).
9.4 The Customer will not be entitled to withhold payment of any sums due to the Company by reason of any claim by the Customer relating to any Supplies, deliveries or work.
9.5 If the Customer fails to make any payment by the due date then without prejudice to any other rights of the Company it:-
9.5.1 will be entitled to suspend all deliveries or work under that or any other Contract with the Customer and the Customer will not in any respect be released from his obligations to the Company under any such Contract;
9.5.2 will be entitled to treat the Contract and/or any other contract with the Customer as having been unlawfully terminated by the Customer and to claim damages for breach of Contract;
9.5.3 may cancel any discount allowed and charge the full price;
9.5.4 may charge interest (both before and after any judgment) at the rate of 4% above the current base rate of the National Westminster Bank plc from the due payment date until date of payment on any payment overdue and interest will accrue from day to day;
9.5.5 may appropriate any payment made by the Customer (on any account) to any Supplies under any contract (notwithstanding any purported appropriation by the Customer);
9.5.6 may exercise a lien on any property of the Customer in the Company's possession for any indebtedness by the Customer to it.
9.6 Payment will not be deemed to have been made until payment in cash or cleared funds has been received by the Company.
10. PROPERTY
10.1 While any money remains owing by the Customer to the Company on any account (whether due for payment or not):-
10.1.1 property in all the Supplies (under any Contract) will remain vested in the Company notwithstanding Delivery or passing of risk;
10.1.2 the Company may recover and re-sell any Supplies and the Customer will deliver any Supplies to the Company upon demand and the Customer grants the Company an irrevocable licence to enter at any time any vehicles or property owned or occupied by the Customer or any third party to repossess and remove the Supplies whether or not they have been affixed to any property and/or to examine any Supplies. The Customer will indemnify the Company against liability in respect of any damage it was not reasonably practicable to avoid caused to any such vehicles or property in such repossession or removal;
10.1.3 the Customer must ensure that if the Supplies become affixed to any property they will be capable of being removed without material injury to them or to such property and will take all necessary steps to prevent title to the Supplies from passing to the owner or landlord of such property. The Customer warrants to repair and make good any damage caused by the affixation of the Supplies to or their removal from any property and to indemnify the Company against the Indemnified Matters as a result of any such affixation or removal;
10.1.4 the Customer will hold all the Supplies in a fiduciary capacity for the Company; stored separately in their original packaging properly protected in a suitable environment for storage of the Supplies and insured and clearly identified as the Company's property;
10.1.5 the Customer's authority to use or resell the Supplies is not implied and any authority given by the Company may be revoked at any time and is automatically revoked and the Customer's right to possession of the Supplies will cease when any money owing to the Company becomes overdue for payment or on the occurrence of any event specified in Condition 20;
10.1.6 the Customer will give the Company written notice of resale of the Supplies with full details of the sub-purchasers, prices and payments made and will keep full records available for inspection by the Company;
10.1.7 any resale of the Supplies by the Customer will be as agent for the Company and will be on the condition that property does not pass to the sub-purchaser except on the same basis as set out in this Condition;
10.1.8 the Company may trace the proceeds of any resale of the Supplies including proceeds of any insurance or factoring of debts and the Customer will hold any such proceeds in trust for the Company and will pay the same to the Company and in the case of tangible or non-monetary proceeds will keep the same stored separately, properly protected and insured and clearly identified as the Company's property;
10.1.9 if the Supplies are attached to, admixed with, processed with or incorporated or included in other products made by the Customer and are not then readily identifiable and separable, the whole of such products will vest in and be the property of the Company and the provisions of this condition will apply to such products;
10.1.10 if the Supplies (the property of the Company) are attached to, admixed with, processed with or incorporated or included in the property of any third person the product thereof will be deemed to be owned by the Company in common with that third person;
10.1.11 any processing of the Supplies by the Customer confirms a bailment for processing relationship with the Company.
10.2 The Customer may not pledge or in any way charge by way of security for an indebtedness any Supplies which remain the property of the Company but if the Customer does so all monies owing by the Customer to the Company will (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
10.3 Nothing contained in this clause will confer any right on the Customer to return the Supplies or to refuse or delay payment.
10.4 The provisions of this condition will continue to apply notwithstanding that the Supplies are incorporated in the Customer's other products.
11. ACCEPTANCE
The Customer will be deemed to have received, inspected and accepted the Supplies as satisfactory and complete in all respects unless notice in writing of any alleged non-delivery, shortage or defect is given to the Company:-
11.1 in the case of alleged non-delivery forthwith when the Customer becomes aware or ought reasonably to be aware that Delivery is overdue or should have taken place in the ordinary course of events or that the Company purports to have made Delivery;
11.2 in the case of alleged under-delivery, shortages or damaged Supplies within 5 Working Days from Delivery; and
11.3 in the case of any alleged defect, fault or failure forthwith upon the same becoming apparent and in any event within 7 Working Days from Delivery or (if the defect is covered by guarantee) within the periods specified in the guarantee.
12. COMPLAINTS
12.1 The Company will be given every facility to examine at the Delivery Address any Supplies the subject of complaint and to return them to the Company's premises. The Customer must retain such Supplies until the Company has inspected them.
12.2 At the Company's request the Customer (at the Customer's risk) will return to the Company the Supplies complained about. The Company will be under no obligation in respect of any damage to or deterioration of any Supplies during return transit.
12.3 The Company may replace, make up or repair any Supplies which are incomplete or defective. Alternatively it may refund the price or give credit and the Company will be under no further liability to the Customer.
12.4 Any Supplies replaced will become the property and at the disposal of the Company.
13. WARRANTIES
13.1 Subject to the Conditions the Company warrants that the Supplies will correspond in all material respects with their Specification at the time of Delivery and are free from substantial defects in materials and workmanship.
13.2 Subject as expressly provided in these Conditions and except where the Supplies are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all conditions, warranties, terms and liabilities whether express or implied arising by statute, custom of the trade or at common law are excluded to the fullest extent permitted by law.
13.3 The Company will not in any event be liable for loss of profit, injury, damage or any consequential or special loss or damage sustained by the Customer howsoever arising and in no event will the Company's liability exceed the sum of £1,000,000.
13.4 If the Company fails to deliver the Supplies in circumstances that the Company is liable to the Customer the Company's liability will be limited at the Company's option:-
13.4.1 to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar Supplies to replace those not delivered; or
13.4.2 to replacing the Supplies within a reasonable time; or
13.4.3 to the amount of any insurance monies received by the Company in respect of the loss or non-Delivery of the Supplies; or
13.4.4 to assigning to the Customer any claim the Company may have against the carrier.
13.5 In no event will the Company be liable:-
13.5.1 for any Supplies which are unreasonably or improperly used (including failure to follow instructions and recommendations for use, maintenance, storage or otherwise) or which are used for any purpose other than that for which supplied or stored in abnormal working conditions;
13.5.2 for Supplies which have been damaged, modified, altered or repaired in any manner after Delivery;
13.5.3 for fair wear and tear;
13.5.4 or any defect in the Supplies arising from any Specifications supplied or instructions given by the Customer;
13.5.5 for any Supplies not manufactured by the Company but the Company at the request and cost of the Customer will use its reasonable endeavours to pass to the Customer the benefit of any warranty or guarantee given by the manufacturer;
13.5.6 for any Supplies which have been used after discovery of defect; or
13.5.7 if the Customer has not served notice in due time under the provisions of Condition 11.
14. THIRD PARTY RIGHTS
So far as the Company is aware, the Supplies do not infringe any existing Intellectual Property Rights but no warranty express or implied is given in this respect. In the event of any claim or action against the Customer in respect of any infringement of any Intellectual Property Rights by the use or sale of the Supplies, the Customer will notify the Company immediately and the Company may at its own expense conduct through its own lawyers and experts all such claims and actions.
15. SPECIFICATIONS AND INFORMATION
15.1 The property in all Specifications (including all Intellectual Property Rights) prepared, manufactured or supplied by the Company in connection with the Contract will vest in and remain with the Company and the Customer will at the Company's request at any time immediately deliver the same to the Company together with all copies in its possession or control.
15.2 The Customer will keep all property of the Company which is in its possession or under its control safe, properly stored, in good condition and insured in the their full value in the name of the Company and will not disclose, copy or transfer the same to any third party.
15.3 The Customer will indemnify the Company against the Indemnified Matters in respect of the Company's tangible property which is at any time in its possession or control.
15.4 The Customer will maintain and procure strict confidentiality regarding the Contract and all matters concerning the Company and its business and affairs and will not disclose the same to any third party or use the same except as may be necessary for the performance of the Contract.
16. SAFETY OF SUPPLIES
16.1 The Customer will provide the Company with all information relating to any defects or safety hazards in the Supplies of which it becomes aware. To assist, the Customer will keep sufficient records of transactions in tracing products subject to subsequent enquiry and to make such information available to the Company on request.
16.2 The Customer will provide any person who uses or may use the Supplies with any information provided by the Company which affects or may affect the safe use of the Supplies and will comply with all the Company's reasonable requirements to ensure the safety of the Supplies or of any user.
17. PRODUCT RECALL
In the event of it being necessary to recall the Supplies, it will be the Customer's duty to co-operate fully in any product recall campaign which might be launched by any appropriate party, whether such campaign is required by law or not. The Customer will also take prompt action and accede to any reasonable request from any interested party to secure the withdrawal of the Supplies, or Supplies incorporating them, from sale or supply.
18. INDEMNITY
To the fullest extent permitted by law the Customer will indemnify the Company from and against all Indemnified Matters arising from any failure by the Customer to comply with the Conditions or otherwise under or in connection with a Contract from any cause other than negligence or breach of contract by the Company.
19. FORCE MAJEURE
The Company will not be liable to the Customer or be in breach of the Contract by reason of any delay in Delivery or any delay in performing or any failure to perform any of the Company's obligations if the delay or failure was due to any cause beyond the Company's reasonable control.
20. TERMINATION
20.1 Without prejudice to any of its other rights or remedies the Company may without liability cancel a Contract or suspend further deliveries or work if:-
20.1.1 the Customer commits any breach of this or any other contract with the Company;
20.1.2 a meeting of the shareholders of the Customer is convened for the purpose of considering a resolution for the winding up of the Customer or a meeting of the creditors of the Customer is convened or the Customer goes into liquidation or there is a winding up petition or if circumstances exist in which the Customer may be wound up by the Court;
20.1.3 the Customer becomes insolvent or unable to pay its debts (within the meaning of Sections 123 or 268 Insolvency Act 1986) or permits any judgment against it to remain unsatisfied for 14 days; or
20.1.4 the Customer ceases or threatens to cease to carry on business.
20.2 If this clause applies then, without prejudice to any other right or remedy available to the Company the Company will be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, and if the Supplies have been delivered but not paid for the price will become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
21. SUB-CONTRACTORS
The Company may sub-contract all or any part of the Contract. The Company accepts full responsibility for work done by such sub-contractors in accordance with these Conditions.
22. GENERAL
22.1 Any notice required or permitted to be given by either party to the other under these Conditions will be in Writing addressed to that other party at its registered office or principal 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. A notice by first class post will be deemed served on the next Working Day after posting. A notice by telex or facsimile will be deemed served at the time of sending.
22.2 No waiver by the Company of any breach of contract by the customer will operate as a waiver of any other or subsequent breach.
22.3 If any provision of these conditions is found 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 will not be affected.
22.4 The Contract between the Company and the Customer will be governed in all respects by English law. The Customer will submit to the jurisdiction of the English courts provided that the Company at its option may bring any legal proceedings against the Customer in the courts of any other country.
22.5 The Contract is personal to the Customer which may not assign the Contract or any rights or benefits within it.
22.6 Where any information concerning living persons is entered by the company onto a computer system, the Customer consents to subsequent use or disclosure of such information.
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