Terms & Conditions
"Conditions" means these conditions of sale together with any special conditions of sale notified to the Purchaser by the Vendor.
"Contract" means a contract for the sale of Goods made by or on behalf of the Vendor with a Purchaser.
"Goods" means any or all of the goods or materials or services which from time to time the Vendor contracts to supply to the Purchaser.
"Purchaser" means the person, firm, company or other corporation who places an order with the Vendor or otherwise agrees to buy from the Vendor any of the Goods.
"Vendor" means EBAC INDUSTRIAL PRODUCTS Limited (registered company number 4961265 ) whose registered office is at St Helen Industrial Estate, Bishop Auckland, County Durham DL14 9AD and any subsidiary of the Vendor by which the Goods are sold.
2.1 These Conditions shall apply to all Contracts, whether written, oral or implied for the sale of Goods by the Vendor.
2.2 Any conditions of purchase or other terms provided by the Purchaser shall be of no effect whatsoever nor shall any variation or alteration of these Conditions be of any effect unless made in writing and signed by or on behalf of the Vendor by a person authorised by the Vendor.
2.3 The Vendor's acceptance of any order for the supply of Goods shall be effective only where such acceptance is on the Vendor's acknowledgement of order form and signed by an authorised representative of the Vendor.
Any quotation in whatever form given to the Purchaser is given subject to these Conditions as an invitation to treat and does not constitute an offer to sell. The validity of any quotation issued by the Vendor shall expire 30 days after the date of its issue unless otherwise stated in writing.
4.1 Subject to anything to the contrary contained in any quotation issued by the Vendor, prices for the Goods are as referred to in the Vendor's current price list and, unless otherwise stated, are exclusive of value added tax and any other similar tax or duty relating to the manufacture, transportation, export, import, sale or delivery of the Goods. The Vendor reserves the right to alter any of its prices without notice and the relevant price list shall be that ruling at the date of acceptance of the Purchaser's offer to buy.
4.2 The Purchaser shall have no right to deduction or set-off whether statutory or otherwise.
4.3 Unless otherwise expressly stated in writing by the Vendor, prices quoted are exclusive of carriage, handling and any insurance charges.
4.4 Unless otherwise expressly stated in writing by the Vendor, all prices payable must be settled in sterling but if the Vendor agrees to accept foreign currency and does not specify an exchange rate the exchange rate will be that of the Bank of England at the close of business on the business day preceding the day on which the Vendor accepts the Purchaser's order.
5.1 The Purchaser shall pay the Vendor in full for the Goods under a Contract within 30 days of the date of the relevant invoice or as otherwise agreed by the parties in writing, in advance.
5.2 Time of payment is of the essence of a Contract and the Vendor reserves the right to suspend the provision of Goods to the Purchaser where any amounts are overdue under any Contract until all such amounts have been paid.
5.3 If the Purchaser fails to pay any amount due to the Vendor under any Contract on the due date, the Vendor may charge:
5.3.1 interest on the amount due on a day to day basis at the rate of 2% per month from the due date until the date of actual payment, whether before or after judgment; and/or
5.3.2 the costs of recovery of the amount due incurred by any third party collection agency on behalf of the Vendor; and/or
5.3.3 the costs of all legal costs incurred by the Vendor in recovering the amount due.
5.4 If in the Vendor's view, the Purchaser's credit worthiness deteriorates before delivery of the Goods, the Vendor may require payment in full or in part of the price prior to delivery, or the provision of security for payment by the Purchaser in such form as is acceptable to the Vendor.
6. DELIVERY AND SUPPLY
6.1 Although given in good faith, delivery times or installation times for the Goods specified by the Vendor in its quotation or otherwise are intended as estimates only and are not therefore to be treated as being of the essence of the contract and binding on the Vendor. The Vendor will not be liable to the Purchaser for any loss or damage (direct or indirect) occasioned by its failure (whether as a result of its negligence or otherwise) to deliver the Goods by the date or within the time stated and in no case shall delay be a ground for rejecting the same.
6.2 The right to deliver any part or parts of the Goods when they become available is expressly reserved by the Vendor and these Conditions shall apply to any such part or parts mutatis mutandis.
6.3 In the case of an alleged shortage in or damage to the Goods:
6.3.1 the Purchaser agrees to notify the Vendor of any claim in respect thereof verbally within 48 hours and in writing within 14 days of its receiving the Goods together with written evidence in support of such claim in relation to the date of receipt; and
6.3.2 the Purchaser agrees to allow the Vendor a reasonable opportunity to inspect the Goods before any use is made of them or alteration is made thereto and to keep them in good order and store them so as to prevent any damage arising.
6.4 In the event that the Vendor agrees to arrange delivery of the Goods to the Purchaser and the Purchaser does not receive delivery of the Goods at the destination requested by the Purchaser by the date agreed or specified in any delivery advice note, the Purchaser shall notify the Vendor as soon as reasonably possible.
6.5 The Purchaser shall have no claim against the Vendor for shortage, damage or non-delivery unless the requirements as to notification set out in this clause 6 are strictly complied with by the Purchaser.
Risk of damage to or loss of the Goods shall pass to the Purchaser at the time they are despatched from the Vendor's works (prior to loading) or when the Purchaser takes control of the Goods which ever shall be the sooner.
The Vendor shall be under no obligation whatsoever to accept any cancellation of an order once accepted. However, if the Vendor at its complete discretion agrees to accept any such cancellation or return, it may levy such reasonable charges as it, in its absolute discretion, sees fit.
9.1 Title in the Goods shall not pass to the Purchaser until the Vendor has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Vendor to the Purchaser for which payment is then due and of any other monies due from the Purchaser to the Vendor on any account.
9.2 Until such time as title in the Goods passes to the Purchaser, the Purchaser shall hold the Goods as the Vendor's fiduciary agent and bailee and shall keep the Goods separately and properly stored, protected, identified and insured as the Vendor's property, but shall be entitled to resell or use the Goods in the ordinary course of its business.
9.3 Until such time as title in the Goods passes to the Purchaser (and provided the Goods are still in existence), the Vendor shall be entitled at any time to require the Purchaser to deliver up the Goods to the Vendor and the Purchaser shall ensure that, if the Purchaser fails to do so forthwith the Vendor shall have the right to enter upon any premises of the Purchaser or any third party where the Goods are stored or used to enable the Vendor to repossess the Goods.
9.4 The Purchaser shall not be entitled to pledge or in anyway charge by way of security for any indebtedness any of the Goods which remain the property of the Vendor, but if the Purchaser does so all moneys owing by the Purchaser to the Vendor shall (without prejudice to any other right or remedy of the Vendor) forthwith become due and payable.
9.5 Until such time as title in the Goods passes to the Purchaser, the Purchaser shall not enter into any binding agreement with any third party which prejudices the assignment or novation of any such agreement to the Vendor pursuant to clause 5.2.4 hereof
9.6 The Vendor may, at any time, appropriate sums received from the Purchaser as it thinks fit notwithstanding any purported appropriation by the Purchaser.
10.1 Subject to clause 10.2 and 10.7 and compliance with the terms of these Conditions on the part of the Purchaser, the Vendor agrees to repair or (at the Vendor's option) replace any Goods which prove to be of unsatisfactory quality at the date of delivery provided that as a condition to any claim for repair or replacement, such claim must be made by the Purchaser within twelve months of the date of delivery as aforesaid. The Vendor reserves the right to decide where warranty repairs are to be carried out.
10.2 The Vendor's total liability except in the case of death or personal injury to the Purchaser whether for negligence, breach of contract, misrepresentation or otherwise, shall in no circumstances exceed the cost of the defective, damaged or undelivered Goods determined by reference to the net invoice price charged to the Purchaser.
10.3 Nothing in these Conditions shall operate to exclude or restrict the Vendor's liability for:
10.3.1 death or personal injury resulting from negligence;
10.3.2 breach of the obligations arising from section 12 of the Sale of Goods Act 1979; or
10.3.3 fraud or deceit.
10.4 The Vendor is not liable for:
10.4.1 non-delivery or non-performance unless the Purchaser notifies the Vendor of the claim within 10 days of the date of the Vendor's invoice;
10.4.2 shortages in quantity delivered in excess of those permitted by clause 4.2 unless the Purchaser notifies the Vendor of a claim within 21 days of receipt of the Goods; or
10.4.3 for damage to or loss of all or part of the Goods in transit (where the Goods are carried by the Vendor's own transport or by a carrier on behalf of the Vendor unless the Purchaser notifies the Vendor within 14 days of receipt of the Goods or the scheduled date of delivery, whichever is the earlier.
10.5 Where the Purchaser deals as a consumer within the meaning of that expression as defined in Section 123 of the Unfair Contract Terms Act 1977 none of the statutory rights of the Purchaser are excluded by this clause 10 and such rights shall remain in full force and effect save to the extent the Vendor is legally entitled to limit its liability by any of the provisions of the sub-clauses of this clause 10.
10.6 Where the Goods supplied to the Purchaser are "Consumer Goods" and the Purchaser is a "Consumer" within the meanings given to these phrases under the Consumer Protection Act 1987 none of the statutory rights of the Purchaser are excluded or in any way limited save to the extent the Vendor is legally entitled to limit its liability by any of the provisions of the sub-clauses of this clause 10.
10.7 In no circumstances, shall the Vendor be liable for any loss or damage suffered by the Purchaser of the following nature howsoever caused and whether foreseeable or contemplatable:
10.7.1 indirect, special or consequential loss which shall include loss of profits, business revenue, goodwill, use, content and anticipated savings; and/or
10.7.2 any claim made against the Purchaser by any third party.
10.8 The Vendor's prices are determined on the basis of the limits of liability set out in this clause. In the event that the Purchaser requires the Vendor to accept a higher limit of liability, the Purchaser shall give written notice of this whereupon the Vendor will accept such liability providing insurance can be obtained against that higher level of liability and providing the cost of such insurance is borne by the Purchaser.
11. VENDOR'S INDEMNITY
11.1 Where the Vendor shall pay damages to any person for personal injury or property damage (whether by court order or settlement or otherwise) arising from a defect in the Goods then the Purchaser shall indemnify the Vendor to the whole of such amount unless the Purchaser can prove that the defect did not arise from any cause within its control.
11.2 If a claim is made against the Vendor in respect of liability under the Consumer Protection Act 1987 in circumstances where a like claim could have been made against the Purchaser in contract, then the Purchaser shall indemnify the Vendor to the extent of one half of all damages, costs and expenses that may become payable as a result of such a claim.
12. PATENT INFRINGEMENT
12.1 The Purchaser warrants that any instructions or plans furnished or given by it shall not be such as will cause the Vendor to infringe any patent, copyright, registered design, right of confidence or trade mark in execution of the Purchaser's order and agrees to indemnify the Vendor against all claims, costs or other expenses incurred by the Vendor in respect thereof.
12.2 The Vendor gives no warranty, guarantee or other assurance to the Purchaser that the goods do not infringe any patent, copyright, design rights (registered or unregistered), right of confidence or trade marks.
13.1 On or at any time after the occurrence of any of the events in condition 13.2, the Vendor may:
13.1.1 stop any Goods in transit;
13.1.2 suspend further deliveries to the Purchaser;
13.1.3 exercise its rights under condition 9; and/or
13.1.4 terminate any Contract forthwith by giving notice to that effect to the Purchaser.
13.2 The events are:
13.2.1 the Purchaser being in breach of any obligation under a Contract or these Conditions;
13.2.2 a meeting being convened, a petition presented, an order made, an effective resolution passed, or notice given for the Purchaser's winding up or dissolution (other than for the sole purpose of amalgamation and reconstruction); or
13.2.3 an application being made, or resolved to be made by any meeting of the Purchaser's directors or members, for an administration order in relation to it or any party gives or files notice of intention to appoint an administrator of it or such an administrator being appointed; or
13.2.4 an incumbrancer taking possession, or a receiver or manager or administrative receiver being appointed, of the whole or any part of the Purchaser's assets; or
13.2.5 the Purchaser ceasing or suspending payment of any of its debts or being unable to pay its debts as they fall due within the meaning of section 123 of the Insolvency Act 1986; or
13.2.6 a proposal being made for a composition in satisfaction of the Purchaser's debts or a scheme or arrangement of its affairs including a voluntary arrangement within the meaning of part I of the Insolvency Act 1986.
13.3 On termination of a Contract pursuant to condition 13.1.4 or 19.2, any indebtedness of the Customer to the Supplier shall become immediately due and payable and the Supplier is relieved of any further obligation to supply Goods to the Customer pursuant to that Contract.
14. CATALOGUES, ADVERTISEMENTS AND DRAWINGS, ETC
14.1 Whilst the Vendor believes that all specifications, illustrations, performance data and other information contained in any drawings, catalogues, advertisements and samples are as accurate as reasonably possible, they do not constitute a description of the Goods and shall not be taken to be representations made by the Vendor and are not warranted to be accurate.
14.2 All intellectual property rights in the Goods including in particular any patent rights, copyright, design rights (registered or unregistered), trade marks and know-how in the Goods shall at all times remain vested in the Vendor or its suppliers (as the case may be) and the Purchaser shall not reproduce or use all or any of them without the Vendor's prior written consent provided that this shall not be taken as including any brand name or style belonging to the Purchaser with which the Goods have been packaged.
14.3 All drawings, catalogues, and other specifications or data provided to the Purchaser by the Vendor must be treated as confidential and should not be disclosed by the Purchaser to any third party or be used by the Purchaser for any purpose other than the installation and operation of the Goods.
15. ALTERATIONS AND MODIFICATIONS
The Vendor may carry out from time to time and without notice or liability to the Purchaser, alterations and improvements in construction or design, specification, materials or manner of manufacture of the Goods.
16. HEALTH AND SAFETY
The Purchaser agrees to pay due regard to any information or any revised information whenever supplied by the Vendor (and is deemed to have been given adequate information and to have read and understood it) relating to the use for which the Goods are designed or have been tested or concerning conditions necessary to ensure that they will be safe and without risk to health at all times when they are being set, used, cleaned or maintained by any person at work or when they are being dismantled or disposed of, and the Purchaser undertakes to take such steps as may be specified by the above information to ensure that, as far as reasonably practicable, the Goods will be safe and without risk to health at all times as mentioned above. For these purposes, the Purchaser is deemed to have been given a reasonable opportunity to test and examine the Goods before delivery.
17. DEFACING OF GOODS
The Purchaser shall not deface, tamper with or remove in all or part any identification label trade mark, logo or insignia which may be embossed upon or affixed to the Goods (nor affix any other trade marks, logo or insignia thereon) without the prior consent of the Vendor and shall not otherwise deface and/or interfere with, alter or modify any of the Goods.
18. MINIMUM ORDER CHARGE
The Vendor reserves the right to apply a minimum order charge on any orders deemed by it to be small in value.
19. FORCE MAJEURE
19.1 In this condition 19, "Force Majeure Event" means any circumstance beyond the control of the Supplier including, but not limited to acts of God, fire, explosion, adverse weather conditions, flood, earthquake, terrorism, riot, civil commotion, war, hostilities, strikes, work stoppages, slow-downs or other industrial disputes, accidents, riots or civil disturbances, acts of government, lack of power and delays by suppliers or materials shortages but, for the avoidance of doubt, nothing shall excuse the Customer from any payment obligations under these Conditions.
19.2 If the Vendor is prevented, hindered or delayed from supplying the Goods under these Conditions by a Force Majeure Event the Vendor may, at its sole option, and without being liable for any loss or damage suffered by the Purchaser as a result:
19.2.1 suspend deliveries or performance while the Force Majeure Event continues;
19.2.2 apportion available stocks of Goods between its customers if the Vendor has insufficient stocks to meet orders; and
19.2.3 terminate any Contract forthwith by giving notice to that effect to the Purchaser.
Any notice required to be served pursuant to these Conditions must be in writing and shall be served as follows:
20.1 Notices to the Vendor: to its offices at St Helen Industrial Estate, Bishop Auckland, County Durham DL14 9AL or such other address as it may from time to time notify to the Purchaser;
20.2 Notices to the Purchaser: to such address as the Purchaser may notify to the Vendor or, in default of notification, to such address as appears overleaf, or if the Purchaser is a company, at the Vendor's option, to the Purchaser's registered office.
21. GOVERNING LAW
The construction, validity and performance of Contract shall be governed by and be interpreted in accordance with English law. The parties hereto agree to submit themselves to the exclusive jurisdiction of the English Courts for the purposes of a Contract.
22.1 The invalidity, illegality or unenforceability of any provision of these Conditions shall not affect the other conditions, which shall remain in full force and effect.
22.2 If any of these Conditions is found to be invalid or unenforceable but would cease to be invalid or unenforceable if some part of the provisions were deleted, the provisions in question shall apply with such modifications as may be necessary to make it valid and enforceable.
23. THIRD PARTY RIGHTS
A person who is not party to this agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.