TERMS AND CONDITIONS OF SALE
SOLARTRON METROLOGY LIMITED. AS "SELLER"
The Buyer’s attention is in particular drawn to the provisions of condition 8.
1. Application of terms. The contract (Contract) between Seller and Buyer for the sale of
goods (Goods) and/or services (Services) to be supplied by Seller shall be on these
conditions to the exclusion of all other terms and conditions (including any terms/conditions
which Buyer purports to apply under any purchase order, confirmation of order,
specification or other document). These conditions apply to all Seller’s sales and any
variation hereto shall have no effect unless expressly agreed in writing and signed by an
officer of Seller. Each order or acceptance of a quotation for Goods or Services by Buyer
shall be deemed to be an offer by Buyer to buy Goods and/or Services subject to these
conditions. Any quotation is given on the basis that no Contract shall come into existence
until Seller despatches an acknowledgement of order to Buyer.
2. Description. The quantity/description of Goods/Services shall be as set out in Seller’s
acknowledgement. All samples, drawings, descriptive matter, specifications and
advertising issued by Seller in its catalogues/brochures or otherwise shall not form part of
the Contract. This is not a sale by sample.
3. Delivery. Unless otherwise agreed in writing by Seller, delivery of Goods shall take
place at Seller’s place of business. Services shall be provided at such venue(s) specified in
Seller’s quotation. Buyer shall take delivery of Goods within 10 days of Seller giving it
notice that Goods are ready for delivery. Any dates specified by Seller for delivery of
Goods or performance of Services are intended to be an estimate and time for delivery
shall not be made of the essence by notice. If no dates are so specified,
delivery/performance shall be within a reasonable time. Subject to the other provisions
hereof, Seller 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 and similar loss), costs, damages, charges or
expenses caused directly or indirectly by any delay in delivery of Goods or Services
(even if caused by Seller’s negligence), nor shall any delay entitle Buyer to terminate
or rescind the Contract unless such delay exceeds 180 days. If for any reason Buyer
fails to accept delivery of Goods when ready, or Seller is unable to deliver Goods on time
because Buyer has not provided appropriate instructions, documents, licences or
authorisations: (i) risk in Goods shall pass to Buyer; (ii) Goods shall be deemed to have
been delivered; and (iii) Seller may store Goods until delivery, whereupon Buyer shall be
liable for all related costs. The quantity of any consignment of Goods as recorded by Seller
on despatch from Seller’s place of business shall be conclusive evidence of the quantity
received by Buyer on delivery, unless Buyer can provide conclusive evidence proving the
contrary. Buyer shall provide Seller in a timely manner and at no charge access to its
facilities as required by Seller to perform Services, informing Seller of all health/safety rules
and security requirements. Buyer also shall obtain and maintain all licenses/consents and
comply with all legislation in relation to the Services. If Seller’s performance of the Services
is prevented/delayed by any act/omission of Buyer, Buyer shall pay Seller all costs incurred
by Seller.
4. Risk/title. Goods are at the risk of Buyer from time of delivery. Buyer’s right to
possession of Goods shall terminate immediately if: (i) Buyer has a bankruptcy order made
against it 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 purpose 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 Buyer or notice of intention to appoint an administrator is given by Buyer
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 Buyer or for the granting of an administration order in
respect of Buyer, or any proceedings are commenced relating to the insolvency or possible
insolvency of Buyer; or (ii) Buyer suffers or allows any execution, whether legal or
equitable, to be levied on its property or obtained against it, or fails to observe or perform
any of its obligations under the Contract or any other contract between Seller and Buyer, or
is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or
Buyer ceases to trade; or (iii) Buyer encumbers or in any way charges any of Goods. Seller
shall be entitled to recover payment for Goods notwithstanding that ownership of any of
Goods has not passed from Seller. While any payment for Goods remains outstanding,
Seller may require return of Goods. Where Goods are not returned in a reasonable time,
Buyer grants Seller an irrevocable licence at any time to enter any premises where Goods
are or may be stored in order to inspect them, or, where Buyer’s right to possession has
terminated, to recover them, and to sever Goods where they are attached or connected to
another item without being responsible for any damage caused. Any such return or
recovery shall be without prejudice to Buyer’s continuing obligation to purchase Goods in
accordance with the Contract. Where Seller is unable to determine whether any goods are
the Goods in respect of which Buyer’s right to possession has terminated, Buyer shall be
deemed to have sold all Goods of the kind sold by Seller to Buyer in the order in which they
were invoiced to Buyer. On termination of the Contract, howsoever caused, Seller’s (but not
Buyer’s) rights contained in this Section 4 shall remain in effect.
5. Price. Unless otherwise set forth in writing by Seller, the price for Goods shall be the
price set out in Seller’s price list published on the date of delivery/deemed delivery and the
price for Services shall be on a time and materials basis calculated in accordance with
Seller’s standard daily fee rates. This price shall be exclusive of any value-added tax (VAT)
and all costs/charges in relation to packaging, loading, unloading, carriage and insurance,
all of which Buyer shall be liable to pay. Seller reserves the right, by giving notice to Buyer
at any time prior to delivery, to increase the price of Goods/Services to reflect an increase
in cost to Seller due to any factor beyond Seller’s control (such as, without limitation,
foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in
cost of labour, materials or other costs of manufacture), change in the delivery dates,
quantities or specification of Goods which shall be requested by Buyer, or any delay
caused by the instructions of Buyer, or failure of Buyer to give Seller adequate
information/instructions.
6. Payment. Unless otherwise set forth in writing by Seller, payment of the price for
Goods/Services shall be due in pounds sterling per the following: 30% with order; 60% not
less than 7 days prior to delivery/performance; and balance of 10% within 30 days from the
date of delivery/performance. Time for payment shall be of the essence. No payment
shall be deemed received until Seller shall have received cleared funds. The whole
purchase price (including VAT, as appropriate) shall be payable as aforesaid,
notwithstanding the fact that Services ancillary or relating thereto remain outstanding.
Notwithstanding the foregoing, all payments shall become due immediately on
termination of the Contract. Buyer shall make all payments due in full without deduction
whether by way of set-off, counterclaim, discount, abatement or otherwise. If Buyer fails to
pay Seller any sum due, Seller shall be entitled to (i) charge interest on such sum from the
due date for payment at a compounded monthly rate equivalent to 3% above the prevailing
base rate published by the London Inter-Bank Overnight Rate (LIBOR) until payment is
made, whether before or after any judgment [Seller reserves the right to claim interest
under the Late Payment of Commercial Debts (Interest) Act 1998.]; (ii) suspend
performance of Services or provision of Goods and/or (iii) terminate the Contract without
notice.
7. Warranty. Seller shall use reasonable endeavours to provide the Services in
accordance in all material respects with its quotation. Seller warrants that for 12 months
from the date of delivery, the Goods shall comply with the requirements of the Contract.
Seller shall not be liable for a breach of the warranty as to Goods unless: (i) Buyer gives
written notice of the defect to Seller, and, if the defect is as a result of damage in transit to
the carrier, within 10 days of the time when Buyer discovers or ought to have discovered
the defect; and (ii) Seller is given a reasonable opportunity after receiving the notice to
examine such Goods and Buyer (if asked to do so by Seller) returns such Goods to Seller’s
place of business at Buyer’s cost; and (iii) Buyer provides Seller with full details of the
alleged defect. Seller further shall not be liable for a breach of the warranty if: (i) Buyer
makes any further use of such Goods after giving such notice; or (ii) the defect arises
because Buyer failed to follow Seller’s oral or written instructions as to the storage,
installation, commissioning, use or maintenance of Goods or (if there are none) good trade
practice; or (iii) Buyer alters or repairs such Goods without the written consent of Seller; or
(iv) the defect results from fair wear and tear. If Goods/Services do not conform with the
warranty, Seller shall at its option repair or replace such Goods (or the defective part) or
reperform the Services or refund the price of such Goods/Services at the pro rata Contract
rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return the Goods
or the part of such Goods which is defective to Seller. In the event that no defect is found,
Buyer shall reimburse Seller for the reasonable costs incurred in investigating the alleged
defect. If Seller complies with the conditions in the 2 preceding sentences, Seller shall
have no further liability for a breach of warranty in respect of such Goods/Services.
8. Limitation of liability. The following provisions set out the entire financial liability of
Seller (including any liability for acts/omissions of its employees, agents and subcontractors)
to Buyer in respect of: (i) any breach of the Contract; (ii) any use made or
resale by Buyer of Goods, or of any product incorporating Goods; (iii) provision of the
Services; (iv) use or application of any information contained in Seller’s documentation; and
(v) any representation, statement or tortious act/omission including negligence arising
under or in connection with the Contract. All warranties, conditions and other terms
implied by statute or common law (save for the conditions implied by section 12 of
the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from
the Contract. Nothing in these conditions excludes or limits the liability of Seller: (i) for
death or personal injury caused by Seller’s negligence; or (ii) under section 2(3), Consumer
Protection Act 1987; or (iii) for any matter which it would be illegal for Seller to exclude or
attempt to exclude its liability; or (iv)for fraud or fraudulent misrepresentation. Subject to
the foregoing, Seller’s total liability 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 Contract price; and Seller shall not be liable to Buyer for loss of profit, loss of
business, or depletion of goodwill in each case whether direct, indirect or
consequential, or any claims for consequential compensation whatsoever
(howsoever caused) which arise out of or in connection with the Contract.
9. Exports. The supply of Goods for which a United Kingdom export license, authority,
approval or other consent is necessary shall be conditional upon the granting of such
export license, or other consent and the terms and conditions thereof. Buyer shall be
responsible, at its own cost and expense, for providing Seller, upon request and in a timely
fashion with an “End-user” certificate or such other document as the United Kingdom
authorities may require, and for obtaining any import license, authority, approval or other
consent which may be necessary with respect to the importation of any Goods into Buyer’s
country and transit thereto. In the event that any license, authority, approval or other
consent is withheld or subsequently suspended, rescinded or cancelled, or the End-user
certificate or similar document is not provided to Seller in a timely fashion, it shall be
deemed to be and treated as an event of Force Majeure pursuant to the provisions of
Section 10. Buyer warrants that it shall not violate or cause the Seller to violate the U.S.
Foreign Corrupt Practices Act of 1977 (FCPA), as amended, the United Kingdom Bribery
Act (UKBA) of 2010, as amended, or their respective implementing regulations in
connection with Buyer’s sale or distribution of the Products and/or Services, and that Buyer
does not know or have reason to believe that any consultant, agent, representative or other
person retained by Buyer in connection with the sale and/or distribution of the Products
and/or Services has violated, nor caused Seller to violate the FPCA and/or the UKBA.
Where Buyer learns of or has reason to know of any violation of the FCPA and/or or UKBA
in connection with the sale or distribution of the Products and/or Services, Buyer shall
immediately advise the Seller.
10. Force majeure. Seller reserves the right to defer the date of delivery or to cancel the
Contract or reduce the volume of the Goods/Services ordered by Buyer (without liability to
Buyer) if it is prevented from or delayed in the carrying on of its business due to
circumstances beyond its reasonable control including, without limitation, acts of God,
expropriation, confiscation or requisitioning of facilities or equipment, governmental actions,
directives or requests, war or national emergency, acts of terrorism, protests, riot, civil
commotion, fire, explosion, flood, inclement, adverse or extreme weather conditions,
including but not limited to storm, hurricane, tornado, or lightning, natural disasters,
epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s
workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies
of adequate or suitable materials, labour, fuel, utilities, parts or machinery, failure to obtain
any license, permit or authority, import or export regulations, restrictions or embargoes.
11. Intellectual Property. All intellectual property rights in the products/materials
developed by Seller, independently or with Buyer, relating to the Services shall be owned
by Seller.
12. General. Each right or remedy of Seller under the Contract is without prejudice to any
other right or remedy of Seller whether under the Contract or not. If any provision of the
Contract is found by any court, or like body to be wholly or partly illegal, invalid, void,
voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity,
voidness, voidability, unenforceability or unreasonableness be deemed severable and the
remaining provisions of the Contract and the remainder of such provision shall continue in
full force and effect. Failure or delay by Seller in enforcing or partially enforcing any
provision of the Contract shall not be construed as a waiver of any of its rights thereunder..
Seller may assign the Contract or any part of it, but Buyer shall not be entitled to assign the
Contract or any part of it without the prior written consent of Seller. Any waiver by Seller of
any breach of, or any default under, any provision of Contract by Buyer shall not be
deemed a waiver of any subsequent breach or default and shall in no way affect other
terms of the Contract. The parties to the Contract do not intend that any term of the
Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999
by any person that is not a party to it. The formation, existence, construction, performance,
validity and all aspects of the Contract shall be governed by English law and the parties
submit to the exclusive jurisdiction of the English courts.