Aerotech Ltd - Standard Terms & Conditions of Sale
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Aerotech Ltd - Standard Terms & Conditions of sale specification of the Goods as published by the Seller from time to time 1. Interpretation which are required to conform with any applicable safety or other 1.1. In these Conditions: statutory requirements or, where the Goods are to be supplied to the “Buyer” means the person who accepts a quotation of the Seller for the Sellers specification, which do not materially affect their quality or sale of the Goods or Services or whose order for the Goods or Services is performance. accepted by the Seller. 3.6. No order which has been accepted by the Seller may be “Goods” means the goods (including any instalment of the goods or any cancelled by the Buyer except with the agreement in writing of the Seller parts for them) which the Seller is to supply in accordance with these and on terms that the Buyer shall indemnify the Seller in full against all Conditions. loss (including loss of profit), costs (including the cost of all labour and “ Seller” means Aerotech Limited (registered in England under number materials used), damages, charges and expenses incurred by the Seller 1548414). as a result of cancellation. In the case of custom or bespoke Goods, the “Services” means the services to be provided by the Seller in accordance Seller reserves the right to be paid a cancellation fee equal to the agreed with these Conditions of such type, at such times and at such locations as price of those Goods. are described in the Specification Sheet. “ Specification Sheet” means the form issued by the Seller, containing 4. Price and delivery of the Goods and Services. details of the Goods and Services to be provided, including the start date The price of the Goods and Services shall be the Sellers quoted and duration of the Services and other details relevant to the Contract. 4.1. “Conditions” means the standard terms and conditions of sale set out in price or, where no price has been quoted (or a quoted price is no longer this document and includes any special terms and conditions agreed in valid), the price listed in the Sellers published price list current at the writing between the Buyer and the Seller. date of acceptance of the order. Where the Goods are supplied for export “ Contract” means the contract for the purchase and sale of the Goods from the United Kingdom, the Sellers published export price list shall and for the provision of Services (if applicable). apply. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the 1.2. In these Conditions, the singular includes the plural and vice Seller without giving notice to the Buyer. versa. 4.2. The Seller reserves the right, by giving notice to the Buyer at 1.3. The headings in these Conditions are for convenience only and any time before delivery or performance, to increase the price of the shall not affect their interpretation. Goods or Services to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without 1.4. References to the Services in these Conditions are only limitation, any foreign exchange fluctuation, currency regulation, applicable if Services are referred to in the Specification Sheet. alteration of duties, significant increase in the costs of labour, materials 2. Basis of sale and supply. or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods or Services which is requested by the 2.1. The Seller shall sell and the Buyer shall purchase the Goods Buyer, or any delay caused by any instructions of the Buyer or failure of and Services in accordance with any written quotation of the Seller which the Buyer to give the Seller adequate information or instructions. is accepted by the Buyer, or any written order of the Buyer which is Except as otherwise stated under the terms of any quotation or accepted by the Seller, subject in either case to these Conditions, which 4.3. shall govern the Contract to the exclusion of any other terms and in any price list of the Seller, and unless otherwise agreed in Writing conditions subject to which any such quotation is accepted or purported between the Buyer and the Seller, all prices are given by the Seller on an to be accepted, or any such order is made or purported to be made, by ex works basis, and where the Seller agrees to delivery of the Goods to the Buyer. other than at the Sellers premises, the Buyer shall be liable to pay the Sellers charges for transport, packaging and insurance. 2.2. No variation to these Conditions shall be binding unless agreed 4.4. The price is exclusive of any applicable value added tax, which in writing between the authorised representatives of the Buyer and the Seller. the Buyer shall be additionally liable to pay to the Seller. 2.3. Any advice, recommendation or representation given or made 4.5. The cost of pallets and returnable containers will be charged to by or on behalf of the Company concerning the Goods or their use or the the buyer in addition to the price of the Goods, but full credit will be given Services which is not confirmed in writing by the Company is followed, to the Buyer provided they are returned undamaged to the Seller before acted or relied upon entirely at the Buyer’s own risk and the Seller shall the due payment date. not be liable for any such advice, recommendation or representation 4.6. The Seller shall provide the Services set out in the Specification which is not so confirmed. Sheet applicable to the Contract. 2.4. Any typographical, clerical or other error or omission in any 5. Licence sales literature, quotation, price list, order acknowledgement, invoice or other document or information issued by the Seller shall be subject to 5.1. Where the Goods include software, the Buyer is granted a non correction without any liability on the part of the Seller. exclusive licence to use the software solely for internal business purposes from the date of delivery of the Goods. The Buyer undertakes not to 3. Orders and Specifications reverse compile or copy the software, save for copying for back up 3.1. No order submitted by the Buyer shall be deemed to be purposes and only then with the prior written consent of the Seller, accepted by the Seller unless and until confirmed in writing by the Sellers Support for the software can be provided by the Seller, subject to the authorised representative. terms of its software support agreement. Terms of payment. 3.2. The Buyer shall be responsible to the Seller for ensuring the 6. accuracy of the terms of any order (including any applicable 6.1. Unless otherwise expressly agreed in writing, the Seller shall be specification) submitted by the Buyer, and for giving the Seller any entitled to invoice the Buyer for the price of the Goods on or at any time necessary information relating to the Goods or Services within a sufficient after delivery of the Goods, unless the Goods are to be collected by the time to enable the Seller to perform the Contract in accordance with its Buyer, or the Buyer wrongfully fails to take delivery of the Goods, in terms. which event the Seller shall be entitled to invoice the Buyer for the price 3.3. The quantity, quality and description of and any specification at any time after the Seller has notified the Buyer that the Goods are for the Goods and Services shall be those set out in the Sellers ready for collection or (as the case may be) the Seller has tendered Specification Sheet. delivery of the Goods. The Seller shall be entitled to invoice the Buyer for Services at the end of each month in which Services are provided or on 3.4. If the Goods are to be manufactured or any process is to be completion of the contracted Services, whichever occurs first. applied to the Goods by the Seller in accordance with a specification 6.2. The Buyer shall pay the price of the Goods and Services (less submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the any discount to which the Buyer is entitled, but without any other Seller in connection with or paid or agreed to be paid by the Seller in deduction) within 30 days of the date of the Sellers invoice, settlement of any claim for infringement of any patent, copyright, design, notwithstanding that delivery may not have taken place and the property trade mark or other industrial or intellectual property rights of any other in the Goods has not passed to the Buyer. The time of payment of the person which results from the Sellers use of the Buyers specification. price shall be of the essence of the Contract. Receipts for payment will be issued only upon request. 3.5. The Seller reserves the right to make any changes in the 6.3. If the Buyer fails to make any payment on the due date then, Page 1 of 4 Aerotech Ltd - Standard Terms & Conditions of sale without prejudice to any other right or remedy available to the Seller, the normally insured against at least throughout the period from the passing Seller shall be entitled to: of risk in the Goods until the passing of property in them. 6.3.1. cancel any discount allowed to the Buyer and invoice the Buyer 8.3. Notwithstanding delivery and the passing of risk in the Goods, for the difference in price, which invoice shall be payable within 7 days or any other provision of these Conditions, the property in the Goods shall of its date; not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed 6.3.2. cancel the Contract or suspend any further deliveries to or to be sold by the Seller to the Buyer for which payment is then due. performance for the Buyer; 8.4. Until such time as the property in the Goods passes to the 6.3.3. appropriate any payment made by the Buyer to such of the Buyer, the Buyer shall hold the Goods on a fiduciary basis as bailee for Goods and Services (or the goods supplied under any other contract the Seller the Buyer shall keep the Goods separate from those of the between the Buyer and the Seller) as the Seller may think fit Buyer and third parties and properly stored, protected and insured and (notwithstanding any purported appropriation by the Buyer); and identified as the Sellers property. Notwithstanding that the Goods (or 6.3.4. charge the Buyer interest (both before and after any judgment) any of them) remain the property of the Seller the Buyer may sell or use on the amount unpaid, at the rate of two per cent per annum above the Goods in the ordinary course of the Buyer’s business at full market Lloyds TSB Bank plc base rate from time to time, until payment in full is value for the account of the Seller. Any such sale or dealing shall be a made (a part of a month being treated as a full month for the purpose of sale or use of the Seller’s property by the Buyer on the Buyer’s own calculating interest). behalf and the Buyer shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Seller the entire 7. Delivery proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any 7.1. Delivery of the Goods shall be made by the Buyer collecting the overdrawn bank account and shall be at all material times identified as Goods at the Sellers premises at any time after the Seller has notified the the Seller’s money. Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that 8.5. Until such time as the property in the Goods passes to the place. Buyer (and provided the Goods are still in existence, the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the 7.2. Any dates quoted for delivery of the Goods or performance of Seller and, if the Buyer fails to do so immediately, to enter upon any the Services are approximate only and the Seller shall not be liable for premises of the Buyer or any third party where the Goods are stored and any delay in delivery of the Goods or performance of the Services repossess the Goods. If this sub-clause is implemented, the Buyer shall howsoever caused. Time for delivery or performance shall not be of the cease to have the rights under sub-clause 7.4. essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon 8.6. The Buyer shall not be entitled to pledge or in any way change giving reasonable notice to the Buyer. by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by 7.3. Where Goods are to be delivered other than at the Sellers the Buyer to the Seller shall (without prejudice to any other right or premises, if the Goods are not delivered or on delivery are found to be remedy of the Seller) forthwith become due and payable. damaged or short the Seller shall not in any event be liable unless the Buyer gives written notice to the Seller and to the carrier within 7 seven 8.7. The Seller shall be entitled to recover the price of the Goods days of the expected delivery date and, in the case of short or damaged (plus VAT) notwithstanding that property in any of the Goods has not delivery, the Buyer gives the Seller a reasonable opportunity to inspect passed from the Seller. the Goods, in the same condition and location as when delivered. 8.8. The Buyer shall promptly deliver the prescribed particulars of 7.4. Where the Goods are to be delivered in installments, each this Contract to the Registrar in accordance with the Companies Act 1985 delivery shall constitute a separate contract and failure by the Seller to Part XII as amended. Without prejudice to the other rights of the Seller, if deliver any one or more of the instalments in accordance with these the Buyer fails to do so all sums whatever owing by the Buyer to the Conditions or any claim by the Buyer in respect of any one or more Seller shall forthwith become due and payable. installments shall not entitle the Buyer to treat the Contract as a whole as Warranties and liability repudiated. 9. 7.5. If the Seller fails to deliver the Goods for any reason other than 9.1. Subject to the conditions set out below the Seller warrants that any cause beyond the Sellers reasonable control or the Buyers fault, and the Goods will correspond with their specification at the time of delivery the Seller is accordingly liable to the Buyer, the Sellers liability shall be and will be free from defects in material and workmanship for a period of limited to the excess (if any) of the cost to the Buyer (in the cheapest twelve months from delivery and the Services will be performed with available market) of similar goods to replace those not delivered over the reasonable care and skill. price of the Goods. 9.2. The above warranty is given by the Seller subject to the 7.6. If the Buyer fails to take delivery of the Goods or fails to give following conditions: the Seller adequate delivery instructions at the time stated for delivery 9.2.1. it shall not apply to any computer software forming part of the (otherwise than by reason of any cause beyond the Buyers reasonable Goods, which is subject to separate support terms; control or by reason of the Sellers fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may: 9.2.2. the Seller shall be under no liability in respect of any defect in the Goods or Services arising from any drawing, design or specification 7.6.1. store the Goods until actual delivery and charge the Buyer for supplied by the Buyer; the reasonable costs (including insurance) of storage; or 9.2.3. the Seller shall be under no liability in respect of any defect 7.6.2. sell the Goods at the best price readily obtainable and (after arising from fair wear and tear, wilful damage, negligence, abnormal deducting all reasonable storage and selling expenses) account to the working conditions, failure to follow the Seller’s instructions (whether Buyer for the excess over the price under the Contract or charge the oral or in writing), misuse or alteration or repair of the Goods without the Buyer for any shortfall below the price under the Contract. Seller’s approval; 8. Risk and property 9.2.4. the Seller shall be under no liability under the above warranty 8.1. The risk of damage to or loss of the Goods shall pass to the (or any other warranty, condition or guarantee) if the total price for the Buyer: Goods and Services has not been paid by the due date for payment, 8.1.1. in the case of Goods to be delivered at the Sellers premises, at 9.2.5. the above warranty does not extend to parts, materials or the time when the Seller notifies the Buyer that the Goods are available equipment not manufactured by the Seller, in respect of which the Buyer for collection; or shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller. 8.1.2. in the case of Goods to be delivered otherwise than at the All warranty claims shall be subject to the terms of the Sellers premises, at the time of delivery or, if the Buyer wrongfully fails 9.3. to take delivery of the Goods, the time when the Seller has tendered Aerotech warranty and field service policy from time to time applicable delivery of the Goods. (the “Policy”). In the event of conflict or inconsistency with these Conditions, the terms of (the Policy) will prevail. 8.2. The Buyer shall keep the Goods fully insured against all risks
Page 2 of 4 Aerotech Ltd - Standard Terms & Conditions of sale Buyer shall accordingly account to the Seller for, all damages and costs 9.3.1. Subject as expressly provided in these Conditions, [and except (if any) awarded in favour of the Buyer which are payable by or agreed where the Goods are sold and Services provided to a person dealing as a with the consent of the Buyer (which consent shall not be unreasonably consumer (within the meaning of the Unfair Contract Terms Act 1979)], withheld) to be paid by any other party in respect of any such claim; and all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. 10.2. without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the 9.4. Where the Goods are sold or Services provided under a Seller may reasonably require to mitigate or reduce any such loss, consumer transaction (as defined by the Sale of Goods Act 1979) the damages, costs or expenses for which the Seller is liable to indemnify the statutory rights of the Buyer are not affected by these Conditions.] Buyer under this clause). 9.4.1. Any claim by the Buyer which is based on any defect in the 11. Insolvency of Buyer quality or condition of the Goods or their failure or the failure of Services to correspond with specification shall (whether or not delivery is refused 11.1. This clause applies if: by the Buyer) be notified to the Seller within 7 days from the date of delivery or performance or (where the defect or failure was not apparent 11.1.1. the Buyer makes any voluntary arrangement with on reasonable inspection) within a reasonable time after discovery of its creditors or becomes subject to an administration order or (being an the defect or failure. If delivery is not refused, and the Buyer does not individual or firm) becomes bankrupt or (being a company) goes into notify the Seller accordingly, the Buyer shall not be entitled to reject the liquidation (otherwise than for the purposes of amalgamation or Goods and the Seller shall have no liability for such defect or failure, and reconstruction); or the Buyer shall be bound to pay the price as if the Goods had been 11.1.2. an encumbrancer takes possession of, or a receiver delivered and the Services performed in accordance with the Contract. is appointed, in respect of any of the property or assets of the Buyer; or 9.4.2. Where any valid claim in respect of any of the Goods which is 11.1.3. the Buyer ceases, or threatens to cease, to carry on based on any defect in the quality or condition of the Goods or their business; or failure or the failure of Services to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to 11.1.4. the Seller reasonably apprehends that any of the replace the Goods (or the part in question) or re-perform the Services events mentioned above is about to occur in relation to the Buyer and free of charge or, at the Seller’s sole discretion, refund to the Buyer the notifies the Buyer accordingly. price of the Goods or Services (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer. 11.2. If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the 9.5. The Seller accepts liability for direct loss or damage of and loss Contract or suspend any further deliveries or performance under the of or damage to the tangible property of the Buyer caused by its Contract without any liability to the Buyer, and if the Goods have been negligence or breach of contract. subject to a limit of £100,000 for each delivered or Services provided but not paid for the price shall become event or omission or series of events or omissions causing substantially immediately due and payable notwithstanding any previous agreement or the same loss and an aggregate limit in any 12 month rolling period of arrangement to the contrary. (£1,000,000). 12. Copyright 9.6. Except in respect of death or personal injury caused by the Seller’s negligence and liability for fraudulent misrepresentation, in 12.1. Unless otherwise agreed in writing, all patterns , drawings, respect of which the Seller’s liability shall not be limited, the Seller shall plans, diagrams, tools, jigs and fixtures required for the performance of not be liable to the Buyer by reason of any representation, or any implied the Contract shall, notwithstanding any payment by the Buyer, at all warranty, condition or other term, or any duty at common law, or under times remain the property of the Seller. the express terms of the Contract, for any loss of profit, contracts or 12.2. The copyright and design rights in all drawings, instruction goodwill or for any indirect, special or consequential loss or damage manuals and other documents prepared by the Seller for the Contract or (whether for loss of profit or otherwise), costs, expenses or other claims otherwise shall remain the property of the Seller, shall be treated as for consequential compensation whatsoever (and whether caused by the confidential and shall not be disclosed copied or reproduced by the Buyer negligence of the Seller, its employees or agents or otherwise) which or any third party without the prior written consent of the Seller. arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, the supply of Services or otherwise relating to the 13. Export Terms performance or non-performance of the Contract by or on behalf of the Seller. 13.1. In these Conditions Inco terms means the international rules for the interpretation of trade terms of the International Chamber of 9.7. The Seller shall not be liable to the Buyer or be deemed to be Commerce as in force at the date when the Contract is made. Unless the in breach of the Contract by reason of any delay in performing, or any context otherwise requires, any term or expression which is defined in or failure to perform, any of the Seller’s obligations in relation to the Goods, given a particular meaning by the provisions of Inco terms shall have the if the delay or failure was due to any cause beyond the Seller’s same meaning in these Conditions, but if there is any conflict between reasonable control. the provisions of Inco terms and these Conditions, the latter shall prevail. 10. Indemnity 13.2. Where the Goods are supplied for export from the United 10.1. if any claim is made against the Buyer that the Goods infringe Kingdom, the provisions of this clause 12 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply or that their use or resale infringes the UK patent, copyright, or trade notwithstanding any other provision of these Conditions. mark of any other person, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the 13.3. The Buyer shall be responsible for complying with any Buyer in connection with the claim, or paid or agreed to be paid by the legislation or regulations governing the importation of the Goods into the Buyer in settlement of the claim, provided that country of destination and for the payment of any taxes, including value 10.1.1. the Seller is given full control of any proceedings or added tax, duties thereon. negotiations in connection with any such claim; 13.4. Unless otherwise agreed in writing between the Buyer and the 10.1.2. the Buyer shall give the Seller all reasonable Seller, the Goods shall be delivered FOB to the air or sea port of shipment and the Seller shall be under no obligation to give notice under section assistance for the purposes of any such proceedings or negotiations; 32(3) of the Sale of Goods Act 1979. except pursuant to a final award, the Buyer shall 10.1.3. 13.5. The Buyer shall be responsible for arranging for testing and not pay or accept any such claim, or compromise any such proceedings inspection of the Goods at the Seller’s premises before shipment. The without the consent of the Seller (which shall not be unreasonably Seller shall have no liability for any claim in respect of any defect in the withheld); Goods which would be apparent on inspection and which is made after 10.1.4. the Buyer shall do nothing which would or might shipment, or in respect of any damage during transit. vitiate any policy of insurance or insurance cover which the Buyer may 13.6. Payment of all amounts due to the Seller shall be made by have in relation to such infringement, and this indemnity shall not apply irrevocable letter of credit opened by the Buyer in favour of the Seller and to the extent that the Buyer recovers any sums under any such policy or confirmed by a bank in London acceptable to the Seller or, such other cover (which the Buyer shall use its best endeavours to do); means of payment as the Seller may specify, in relation to the Contract. 10.1.5. the Seller shall be entitled to the benefit of, and the Page 3 of 4 Aerotech Ltd - Standard Terms & Conditions of sale Seller indemnified in respect of any loss, liability or exposure arising 13.7. The Buyer undertakes not to offer the Goods for resale in any directly or indirectly from use of the Goods other than in accordance with country notified by the Seller to the Buyer at or before the time the the Seller’s operating instructions. Buyer’s order is placed, or to sell the Goods to any person if the Buyer knows or has reason to believe that that person intends to resell the 14.5. If any provision of these Conditions is held by any competent Goods in any such country. 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 14. General provision in question shall not be affected thereby. 14.1. The Seller is a member of the group of companies whose 14.6. The Contract shall be governed by the Laws of England. The holding company is Aerotech Inc. and accordingly the Seller may perform parties will seek to resolve disputes between them by alternative dispute any of its obligations or exercise any of its rights hereunder by itself or resolution (ADR). If the parties fail to agree within 60 days of the initiation through any other member of its group, provided that any act or omission of the procedure (or if either party will not participate in ADR), the of any such other member shall be deemed to be the act or omission of dispute shall be referred to the exclusive jurisdiction of English Courts. the Seller. 14.7. The Buyer shall not assign this Contract or any of its rights 14.2. Any notice required or permitted to be given by either party to under it without the prior written consent of the Seller. the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such 14.8. Each party shall comply with the provisions of the Data other address as may at the relevant time have been notified pursuant to Protection Act 1998 in relation to the processing of any personal data. this provision to the party giving the notice. 14.9. Except where expressly stated to the contrary, no person who 14.3. No waiver by the Seller of any breach of the Contract by the is not a party to the Contract has or shall have any rights under the Buyer shall be considered as a waiver of any subsequent breach of the Contracts (Rights of Third Parties) Act 1999 to enforce the Conditions of same or any other provision. this Contract and no consent of any third party shall be required to any variation of the Conditions. 14.4. The Buyer shall be solely responsible for and shall keep the
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