STANDARD CONDITIONS OF SALE - EVASAFE PRODUCTS LIMITED
1. DEFINITIONS
1.1 In these Conditions the following expressions shall have the following meanings:
1.1.1 ‘‘Evasafe’’ means Evasafe Products Limited and reference to the consent authority or agreement of Evasafe shall mean consent authority or agreement in writing signed by a Director of Evasafe.
1.1.2 ‘‘the Customer’’ means any person firm or company receiving a quotation from and/or placing an order with Evasafe.
1.1.3 ‘‘Goods’’ means all and every item of goods or part thereof supplied by Evasafe.
1.1.4 ‘‘Contract’’ means the quotation, these Conditions of Sale, and any other document incorporated in a contract between Evasafe and the Customer.
1.1.5 ‘‘Additional Items’’ means the following where incurred:
(i) packaging costs under Clause 7.4
(ii) any taxes (including value added tax), duties or other charges levied by any governmental or other authority in respect of or by reason of the sale, delivery, export or import of the Goods or any part thereof but excluding taxes assessed on profits or gains
(iii) Application Support (if any).
(iv) transportation costs under Clause 7.1
(v) storage costs under Clause 7.5
(vi) the cost of samples under Clause 3.5.
1.1.6 ‘‘Connected Goods’’ means all equipment not sold by Evasafe but connected (directly or indirectly) or used in conjunction with the Goods.
1.1.7 ‘‘Application Support’’ means any works and services provided by Evasafe in conjunction with the sale of Goods.
1.1.8 ‘‘Transgression’’ means any breach of contract or tort or other act, default, omission or statement of Evasafe, its employees, agents or subcontractors in respect of which Evasafe is liable to the Customer.
1.1.9 ‘‘Delivery Period’’ means 3 months after the estimated delivery date.
1.1.10 ‘‘Warranty Period’’ means 12 months in the case of fire alarm products and all other products.
2. GENERAL
2.1 These Conditions apply to all contracts for the sale of Goods by Evasafe and supersede any previous Conditions of Sale published by Evasafe. No additions or modifications to or terms or conditions inconsistent with these Conditions shall be binding upon Evasafe unless agreed by Evasafe in a document expressly referring to a modification, alteration, variation or addition of or to the relevant Condition or Conditions.
2.2 All brochures, catalogues, price lists, particulars of weight and dimensions and other advertising or descriptive material submitted to the Customer are intended to be approximate only and to give a general impression of the Goods. Unless expressly incorporated the same shall not form part of the Contract. Evasafe reserve the right to make minor alterations to the design specification or construction of the Goods without prior notification to the Customer.
3. QUOTATION AND SAMPLES
3.1 All orders for items of non-standard voltages or types not included in Evasafe catalogues are deemed to be ‘‘Specials’’.
3.2 No contract for the production of ‘‘Specials’’ will be created by the acceptance of a quotation until Evasafe acknowledge the order.
3.3 Evasafe reserve the right to refuse to accept any order based upon a quotation unless the quotation is stated to be open for a defined period and the quotation has not been withdrawn in that period.
3.4 Evasafe reserve the right to increase the price quoted per unit for Goods if the Customer orders less than the number of units upon which the quotation was based.
3.5 Any samples submitted with the quotation or at the Customer’s request must be returned within 90 days of receipt and if not so returned the cost of samples shall be added to the Contract price.
4. PRICE AND PAYMENT TERMS
4.1 Unless otherwise stated any price stated by Evasafe in the Contract is strictly net and ex-works, and the Additional Items shall be added to the price.
4.2 Payment in full for the Goods (and Additional Items if any) shall be due and payable on the terms specified on the invoice.
4.3 Evasafe reserve the right to charge interest at 4% above the National Westminster Bank PLC base lending rate for the time being on any overdue payments until repaid in full.
4.4 Evasafe reserve the right to recover from the Customer all direct expenses reasonably incurred by Evasafe in the collection of any overdue sums.
4.5 Without prejudice to any other rights of Evasafe, if there is reason to doubt that the amounts due from the Customer under the terms of the Contract will be paid in full according to the terms thereof, then Evasafe reserve the right to require payment in full before delivering or performing any other work or services whatsoever for the Customer.
The Customer shall indemnify Evasafe against all losses sustained or extra expenditure incurred as a result of such a suspension of manufacturing ordering, delivery or other work or services including a reasonable allowance for storage. Where payment requested in accordance with this Clause is not received within 30 days of demand, Evasafe reserve the right to sell or dispose of the Goods produced for the Customer and to recover any additional loss from the Customer.
5. TITLE
5.1 Legal ownership of the Goods is to remain vested in Evasafe until the Goods and any Additional Items have been paid for in full. If the Customer obtains possession of the Goods prior to such payment, the Customer shall hold the Goods in a separate and identifiable form.
Failure to pay the full amount when due shall give Evasafe or its employees or agents the right to repossess the Goods (and to enter the Customer’s premises for that purpose if necessary) with or without notice and without liability and, at its option, to avail itself of any other legal remedy. Evasafe shall have the right to sell the Goods once they have been repossessed under this Clause.
5.2 Notwithstanding Clause 5.1, Evasafe shall be entitled to maintain an action for the price of the Goods and Additional Items at any time after the date when payment is due.
6. PERFORMANCE AND FORCE MAJEURE
6.1 Evasafe take all reasonable steps to perform its obligations and deliver within the time specified, but such times are estimates only.
Evasafe shall not be liable for late performance or delay in delivery and delays shall not entitle the Customer to rescind the Contract.
6.2 Without prejudice to the generality of Clause 6.1 , Evasafe shall have no liability for any delay or default in performance of any obligation caused directly or indirectly by breakdown or unavailability of plant or machinery, failure of raw material or supply of raw material, inability to obtain sufficient labour or sufficient skilled labour or any other cause or causes beyond the reasonable control of Evasafe. If such cause or causes prevent delivery of Goods within the Delivery Period either party may cancel the order on giving written notice to the other at least 28 days before Evasafe may reasonably expect to complete the order without liability to compensate the other party for any loss or damage whatsoever sustained by reason of the non delivery or non acceptance of those Goods.
6.3 Evasafe reserve the right to make part deliveries and to submit invoices for Goods supplied as part of an order.
7. RISK CARRIAGE PACKAGING AND STORAGE
7.1 Where no specific instructions about the manner in which the Goods are to be delivered to the Customer or the delivery address are given Evasafe reserve the right in its absolute discretion to choose the means of carriage to the Customer and to direct the Goods to the Customer’s last known business address. Such specific instructions must be given to Evasafe at the time of order and where such specific instructions are given Evasafe reserve the right to charge for delivery.
7.2 Subject to Clause 7.3 thereof the Goods are sold ex-works and from the time when the Goods are despatched from Evasafe’s premises the risk of any loss, damage or deterioration of the Goods shall be and remain with the Customer notwithstanding that Evasafe may arrange carriage. Evasafe shall be under no liability arising from their choice of carrier or carriers or from the act or omission of such carrier or carriers and the Customer waives all rights under Section 32(2) of the Sale of Goods Act 1979 in addition to any other rights hereby excluded or restricted.
7.3 In the case of sales where Evasafe contracts directly with the carrier then Evasafe will repair or (at its option) replace Goods lost or damages in transit (other than by default of the Customer) provided that notification of non arrival of the Goods or of such loss or damage is made to Evasafe and separately to the Carrier within the period stipulated by the Carrier’s terms of carriage for claims against the Carrier or (where no such period is stipulated) within 7 days of despatch of the Invoice. On request Evasafe will inform the Customer of the name and address of the Carrier and any time limit for claims stipulated by them.
7.4 If it is necessary to despatch Goods in crates, cases, pallets, stillages or skids Evasafe reserve the right to charge for packaging. The amount charged for packaging will be credited in full to the Customer if the packaging is returned in good condition at the expense of the Customer within 1 month of delivery,
7.5 Once the Goods are ready for delivery Evasafe shall be entitled to invoice and be paid for the Goods as if they had been delivered if for any reason the Customer does not arrange for or accept delivery, Evasafe shall arrange storage for the Goods and the cost of storage shall be added to the Contract price.
8. TERMS AND REPRESENTATIONS
8.1 THESE CLAUSES DEFINE THE CUSTOMER’S RIGHTS IN RESPECT OF ANY LOSS OR DAMAGE CAUSED BY THE GOODS CONNECTED GOODS OR APPLICATION SUPPORT OR FOR ANY STATEMENTS MADE BY Evasafe OR THEIR EMPLOYEES OR AGENTS.
CUSTOMERS ARE ADVISED TO READ THESE PROVISIONS CAREFULLY.
8.2 Evasafe agree to repair or (at its discretion) replace Goods which are found to be defective and which are returned to Evasafe within the Warranty Period provided that each of the following are satisfied:
8.2.1 notification in writing of any defect being given to Evasafe immediately upon it becoming apparent to the Customer
8.2.2 the Goods shall have been operated under normal operating conditions
8.2.3 the Goods are returned to Evasafe’s premises at the Customer’s expense
8.2.4 any Goods or parts of Goods replaced shall become the property of Evasafe
8.2.5 no work whatsoever (other than normal maintenance) has been carried out to the Goods or any part of the Goods without Evasafe’s prior written consent
8.2.6 the defect has not arisen solely from a design made, furnished or specified by the Customer.
8.3 Evasafe accept liability for death or personal injury to the extent that it results from the negligence of Evasafe, its employees (whilst in the course of their employment) or its agents (in the course of the agency) and further accept liability for any breach by Evasafe of any statutory undertaking as to title, quiet possession and freedom from encumbrance.
8.4 Subject to Clauses 8.2 and 8.3 from the time of despatch of the Goods from Evasafe’s premises the Customer shall be responsible for any defect in the Goods or loss, damage, nuisance or interference whatsoever consequential or otherwise or wastage of material resulting from or caused by or to the Goods the Connected Goods or Application Support Evasafe accordingly excludes all liability for the same.
8.5 At the request and expense of the Customer, Evasafe will test the Goods to ascertain performance levels and provide a report of the results of that test. The report will be accurate at the time of the test, to the best of the belief and knowledge of Evasafe, and Evasafe accept no liability in respect of its accuracy beyond that set out in Clause 8.2.
8.6 Subject to Clause 8.5 no condition, warranty or other term. express or implied (by statute or otherwise) is given by Evasafe that the Goods the Connected Goods (whether or not Evasafe or its employees or agents have recommended their use) or the Application Support either separately or in conjunction will enable the Customer to attain any particular performance or result or will be suitable for any particular purpose or use under specific conditions or will provide any particular capacity, notwithstanding that the requirement for such performance, result or capacity or that such particular purpose or conditions many have been known (or ought to have been known) to Evasafe its employees or agents.
8.7.1 To the extent that Evasafe is held legally liable to the Customer for any single Transgression. Evasafe s liability for the same shall not exceed the value of this Contract subject to a maximum liability of TWO MILLION POUNDS provided that a number of Transgressions, whether successive or concurrent, which together result in or contribute to substantially the same loss or damage shall be treated as a single Transgression.
8.7.2 The restriction of liability in subclause 8.7.1 shall not apply to any liability accepted by Evasafe in Clause 8.3.
8.8 If any exclusion or limitation of liability or any other provision contained in the Contract is held invalid under any applicable statute or rule or law, it shall to that extent be deemed omitted, but if Evasafe thereby become liable for any defect or loss, damage, nuisance, or interference whatsoever consequential or otherwise or wastage of materials which would otherwise have been excluded or limited such liability shall be subject to the other exclusions, limitations or provisions set out in Clause 8.
9. TERMINATION
9.1 Evasafe shall, at its option, be entitled to terminate all or any of its contracts with the Customer forthwith and recover all losses or damage resulting to Evasafe including (but without limitation to) loss or profit or other consequential loss if:
9.1.1 the Customer shall suffer any distress or execution to levy against its assets or shall commit any act of bankruptcy or shall enter into any arrangement or composition with its creditors or make an offer to do so or as regards a company a resolution is passed or petition issued for its winding up or a receiver or manager is appointed over the whole or a substantial part of the Customer’s assets or the equivalent of any of the above events occurs; or 9.1.2 the Customer fails to make any payment owed to Evasafe on the date due; or 9.1.3 the Customer fails to make payment in advance when requested in accordance with Clause 4.5 above, within 7 days of being requested to do so; or
9.1.4 the Customer fails to take delivery of or to collect the Goods within 14 days of being notified by Evasafe that they are to be delivered or are ready to be collected; or 9.1.5 the Customer is in breach of the terms and conditions of any contract with Evasafe (including breach of these Conditions) and shall fail to remedy the same within 21 days of notice specifying the breach and requiring remedy (if the breach shall be remediable).
10. ERRORS
10.1 Subject to Clause 8.2 of these Conditions Evasafe accept no liability to reimburse or compensate the Customer for loss arising or to replace the Goods supplied where the Goods supplied or the quantity of such Goods supplied are not such as the Customer requires or that the Goods are delivered to an address or by a means of carriage other than that required or that the Customer’s requirement for the Goods has diminished or ceased (whether because of another supply of the same or similar Goods or for any other reason) or that the price is other than understood by the Customer or that (in case of confirmation orders not being marked as such) the same order has been supplied twice.
10.2 Where following an error covered by Clause 10.1 Evasafe agree to replace Goods supplied with other Goods, a reasonable handling charge will be added to the price of those other Goods, and where Evasafe issues a credit or makes other reimbursement a reasonable handling charge will be deducted from the same.
11. PATENTS
11.1 The Customer shall notify Evasafe immediately of any claim made or action brought against the Customer for infringement of any patent by the use or sale of the Goods.
11.2 Evasafe shall at its sole discretion take such action in relation to any infringement as it may think appropriate.
11.3 The Customer shall not take any action in relation to any infringement without Evasafe’s prior written consent.
11.4 Provided that the Customer has complied with Clause 1 1, and has not used the Goods for any purpose other than that for which they were supplied, Evasafe will indemnify the Customer against such claims or actions.
12. NOTICES
12.1 Any notice or other document required or referred to in the Contract shall be deemed served if sent by registered or recorded delivery post addressed to the party for whom it is intended at such party’s registered or main office or last known address and shall be deemed to have been received and duly served 48 hours after the date of posting.
13. LEGAL CONSTRUCTION. INTERPRETATION AND LIMITS OF THE CONTRACT
13.l The Contract shall be governed in all respects by English Law and be subject to the sole jurisdiction of the English Courts.
13.2 Save for statements or representations confirmed in writing in the Contract, no oral statements of whatsoever nature and by whomsoever made shall form part of the Contract. In contracting with Evasafe the Customer acknowledges that he has not relied on any oral statements or representations made to him save those confirmed as aforesaid.
DATED 21ST AUGUST 1997
END OF SALE TERMS
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