1. Definitions
1.1 Contract – these terms and conditions and the document agreed between the parties setting out the parties, Specification of Goods, Target Delivery Date, Delivery address and Contract Price.
1.2 Contract Price being the price agreed between the Buyer and Seller for the Goods.
1.3 Buyer – the person, firm or company with whom the Seller contracts.
1.4 Delivery Address – the address to which the Goods will be delivered.
1.5 Goods -the goods set out in the Specification.
1.6 Incoterms – the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made.
1.7 Specification – the specification of the Goods to be provided under the Contract set out in writing and agreed by both Buyer and Seller.
1.8 Target Delivery Date -the date agreed between the parties on which the Seller will endeavour to deliver the Goods.
1.9 Seller – New Vision Services. Registered Office: PO Box 20, Douglas Mill Bradley Lane, Standish, Wigan, England, WN6 0XF. Trading address: PO Box 20, Douglas Mill Bradley Lane, Standish, Wigan, England, WN6 0XF.
1.10 Warranty Period – 12 months from the date of delivery of the Goods, unless extended period is agreed and entered in a contract.
2. Basis of the Contract
2.1 The Seller agrees to supply the Goods to the Buyer and the Buyer agrees to pay the Contract Price in accordance with the terms of the Contract.
2.2 Any quotation provided by the Seller shall only be accepted as contractual upon receipt of an official purchase order that is formally accepted by the Seller.
2.3 These terms and conditions shall apply to all contracts for the provision of goods and/or services by the Seller to the Buyer. The exclusion of all other terms and conditions, including any terms and condition’s which the Customer may claim to apply under any order or other document. In the case of any conflict or ambiguity between the Buyer’s original specification and the Specification set out on this document, the latter shall prevail.
2.4 Acceptance of delivery of the Goods by the Buyer shall be deemed conclusive evidence of the Buyer’s acceptance of the Contract.
2.5 The Seller may employ sub-contractors to carry out any part of its obligations under the Contract at its sole discretion and it may assign its rights and obligations under this Contract to any other party. The Buyer may not employ sub-contractors nor assign its rights and obligations under this Contract without the written consent of the Seller.
2.6 Any deviation of these terms and conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by a director or other authorised representative of the Seller.
2.7 Any tender or quotation submitted by the Seller to the Buyer shall, unless otherwise stated, be subject to these terms and conditions, be valid for 30 days and may be revoked at any time.
2.8 Any reference in this Contract to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
2.9 Where delivery is agreed to be made by instalments, each instalment may be deemed at the Seller’s discretion to be a separate and distinct contract and no default by the Seller in respect of any one or more instalment shall entitle the Customer to reject or withhold payment in respect of any other instalment
3. Terms of Payment
3.1 The Contract Price shall be agreed between the parties in writing before delivery of the Goods.
3.2 The Seller reserves the right by giving notice to the Buyer at any time before delivery of the Goods to increase the Contract Price if;
3.2.1Tthe costs to the Seller of purchasing or providing such Goods increase due to any factor beyond the control of the Seller, including material exchange rate fluctuations and increased supplier charges;
3.2.2 The Buyer changes the Specification;
3.2.3 The Buyer agrees to any change to the Specification proposed by the Seller;
3.2.4 The Buyer causes any delay;
3.2.5 The Buyer fails to give the Seller adequate or accurate information, instructions or facilities in accordance with this Contract.
3.3 The Seller may, at its discretion, agree a credit limit with the Buyer and may vary that limit at any time by notice to the Buyer. Such variation shall apply to all invoices which remain undelivered. All sums due under the Contract will be invoiced by the Seller and paid by the Buyer as follows;
3.3.1 Credit Customers operating within an agreed credit limit -Unless alternative payment provisions are agreed, the Seller may submit an invoice or invoices at any time during or after delivery of the Goods in respect of such part of the Goods delivered up to that date. The Buyer shall pay such invoices by 30 days from the date of the invoice or a previously agreed date as set out in the agreement.
3.3.2 Non-credit Customers or credit Customers operating beyond their credit limit from time to time – The Seller may submit invoices in advance of performance of the Contract and may require pre-payment as a condition of doing so.
3.4 Invoices shall be sent to the Buyer’s address recorded in this Contract.
3.5 Invoices shall be paid without any deduction, set-off, counterclaim or abatement and on time.
3.6 The Seller may specify which currency and method of payment it requires the Buyer to use.
3.7 Where the Contract includes a specified exchange rate, the Contract Price shall be adjusted to reflect any movement in the said exchange rate at the date of delivery of the Goods, and such adjustment shall be itemised on the invoice.
3.8 The Contract Price does not include VAT or any similar sales tax, impost or customs duties unless expressly stated, which will be paid additionally by the Buyer at the then prevailing rate.
3.9 The Contract Price does not include carriage, packing or insurance unless expressly stated. Such sums may be added by the Seller to the Contract Price.
3.10 If the Buyer fails to make any payment within the time specified in this Contract the Seller may take any or all of the following steps;
3.10.1 Immediately invoice the balance of the Contract Price in advance of the delivery of any further Goods;
3.10.2 Cancel the Contract and any other contract between the Seller and the Buyer;
3.10.3 Charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of58% per annum above the Official Dealing Rate of the Bank of England from time to time until payment in full is made, and also charge
the Buyer for all costs and expenses (including legal costs) incurred by the Seller in the collection of any overdue amount;
3.10.4 Appropriate any payment made by the Buyer and off-set any monies due to the Buyer, whether under this Contract or any other contract or otherwise (including any VAT applicable), to or against the unpaid invoice or invoices;
3.10.5 Refuse to deliver any balance of Goods or provide any services or guarantee services, whether under this Contract or any other contract or otherwise, until payment is made in full;
3.10.6 Retain any property of the Buyer then in its possession under a general lien for any such payment.
3.11 Prices contained in any price list, catalogue, website etc. are those applying at the date thereof, are for guidance only and shall not bind the Seller until a firm Contract Price has been agreed.
4. Goods
4.1 The Goods shall be at the Buyers risk as from delivery to the Delivery Address, or in the case of collection by the Customer, from the date and time of such collection, save for later damage caused to the Goods by any negligent act of the Buyer or any of its sub-contractors and the Buyer will be responsible for insuring the Goods from the time risk passes.
4.2 In spite of delivery having been made, legal title in the Goods and to all other goods delivered by the Seller to the Buyer, whether themselves paid for or not, shall not pass from the Seller to the Buyer until the Contract Price has been paid in full and no other sums are due from the Buyer to the Seller.
4.3 Until title in the Goods passes to the Buyer, the Buyer shall hold the Goods in trust as a bailee for the Seller.
4.4 Notwithstanding that the Goods remain the property of the Seller, the Buyer may sell or use the Goods in the ordinary course of its business and shall deal as principal in any such transactions.
4.5 The Seller shall be entitled to recover the Contract Price notwithstanding that title has not passed to the Buyer.
4.6 Until such time as title in the Goods passes to the Buyer, and provided that the Buyer is in default in payment or the Seller in good faith on reasonable grounds believes the Buyer is or may be insolvent or has ceased trading, the Buyer shall on demand by the Seller deliver up such Goods as have not ceased to be in existence or resold, to the Seller. If the Buyer fails to do so, the Seller or any duly authorised representative of the Seller may enter upon any premises owned, occupied or controlled by the Buyer where the Goods are situated and repossess the Goods, using only such force as may be necessary. On the making of such demand, the Buyer’s rights under clause 4.4 shall cease.
4.7 The Buyer’s rights under clause 4.4 shall automatically cease if any of the grounds for termination of the Contract under clause 11.1 arise.
4.8 The Buyer shall not pledge or in any way charge by way of security for any indebtedness, any of the Goods which are the property of the Seller. Without prejudice to any other rights of the Seller, if the Buyer does so, all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
4.9 The Buyer shall insure and keep insured the Goods to the full Contract Price against “all risks” to the reasonable satisfaction of the Seller until the date when property in the Goods passes, and shall whenever requested by the Seller produce a copy of the policy of insurance. Without prejudice to the other rights of the Seller, if the Buyer fails to do so, all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
4.10 Any intellectual property rights in the Goods or in any designs or specifications produced by the Seller for the purpose of the Contract shall remain the property of the Seller or of the Sellers supplier, as applicable. No right or licence is granted except the right to use or resell the Goods.
5. Delivery
5.1 The Seller will be responsible at the Buyer’s cost (unless otherwise agreed) for the delivery of the Goods to the Delivery Address. If no separate Delivery Address is specified in the Contract, the Goods will be delivered to the Buyer’s address.
5.2 The Seller will use all reasonable endeavours to deliver the Goods on the Target Delivery Date but this date will be treated as a target date only and time will not be of the essence. If no dates are specified, delivery of the Goods will be within a reasonable time.
5.3 In particular, the Seller shall not be responsible for delay caused by factors beyond its control.
5.4 The Seller reserves the right by giving notice to the Buyer at any time before delivery of the Goods to change the Target Delivery Date if;
5.4.1The Buyer changes or agrees to change the Specification;
5.4.2 The Buyer causes any delay;
5.4.3The Buyer fails to give the Seller adequate or accurate information, instructions or facilities.
5.5 If the Buyer wishes to change the Target Delivery Date, it shall give not less than 60 days prior written notice to the Seller, in which event, the Seller will use its best endeavours to accommodate such change, subject to its suppliers’ lead times for the Goods.
5.6 The Buyer shall make such arrangements as are necessary to take delivery of the Goods at the Delivery Address on the Target Delivery Date or on such other date as the Seller notifies the Buyer that delivery will be made.
5.7 If the Buyer changes the Target Delivery Date of any Goods or fails to take delivery on the date the Goods are ready for delivery or indicates to the Seller that it will not accept delivery on any date agreed or notified under clauses 4.4 or 4.5, the Seller shall be entitled;
5.7.1 at the Buyer’s risk and expense to store the Goods at the Seller’s premises and to demand payment as if they had been delivered;
5.7.2 to add a financing and stocking charge to the Contract Price in respect of the period from that date to the actual date of delivery at the rate of 10% per annum.
5.8 Following delivery of the Goods the Buyer shall follow any instructions of the Seller as to use and maintenance of the Goods, including any user manual which may be supplied by the Seller or published on its website from time to time.
5.9 No act or omission of the Buyer which prevents the Seller from delivering the Goods or from delivering them according to any agreed time-scale shall prevent the Seller from raising invoices in accordance with clause 3.
5.10 The Seller shall not be liable for any claim for loss or damage to the Goods in transit unless such claim is notified in writing both to the Seller and the carrier within 7 days of delivery of the Goods. Where the Buyer accepts the Goods from the carrier without checking, the Seller shall not be liable for such claim unless the Buyer has marked the delivery note “not examined”.
6. Export terms
6.1 Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in this Contract, but if there is any conflict between the provisions of Incoterms and this Contract, the latter shall prevail.
6.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 7 shall (subject to any special terms agreed in writing between the Seller and the Buyer) apply notwithstanding any other provision of this Contract.
6.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
6.4 Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered Ex-Works.
7. Warranties and Liabilities
7.1 The Seller warrants that the Goods will comply with the Specification.
7.2 Within 7 days of delivery of the Goods (or 14 days in the event of a complaint of non-delivery) the Buyer shall notify the Seller in writing, either that it accepts the Goods and that they are free of defects, or a list of such defects as are known to it at that time.
7.3 If no such notification is received the Buyer shall be deemed to have accepted the Goods. After acceptance, whether deemed or otherwise, the Buyer shall not be entitled to reject the Goods or any part of them.
7.4 In the event of any defect, the Buyer shall be entitled to report only those Goods demonstrating the defect and not in any circumstances save for a universal defect, an entire batch.
7.5 During the Warranty Period, the Buyer shall notify the Seller in writing within 7 days of discovery of any defects in the Goods and will on request, at the Buyers expense, return the allegedly defective Goods to the Seller for examination.
7.6 The Seller shall use its best endeavours to correct any defect arising under normal use and due solely to faulty design (except where supplied by or on behalf of the Buyer), materials or workmanship, which is notified to us within the Warranty Period in compliance with this clause 7, within a reasonable time of receiving such notification, and may at its discretion;
7.6.1 Carry out such work as is necessary to remedy the defect;
7.6.2 Require that the Goods, or part of them, are returned to the Seller’s address or collect such Goods, in either case at the Buyers risk and expense, to examine the Goods or carry out repair work;
7.6.3Replace all or any part of the Goods;
7.6.4 Refund the Contract Price or such part of it as relates to the defective Goods; and such action shall be accepted by the Buyer in full satisfaction of the Seller’s liability for the defect concerned and for any consequences thereof.
7.7 Goods which are repaired or replaced shall be guaranteed for the remainder of the Warranty Period.
7.8 The Seller may invoice the Buyer for the cost of any work or materials brought about by the Buyer’s notification of any defect, where such defect is not attributable to any act or omission of the Seller or is attributable to;
7.8.1 Misuse of the Goods by the Buyer;
7.8.2 Failure to follow the Seller’s advice as to use and maintenance of the Goods;
7.8.3 Any modification made to the Goods by the Buyer or by any third party without the prior written consent of the Seller.
7.9 If any unauthorised modification is made to the Goods or the Buyer continues to use them or re-sells them (or any of them) after identification of a defect, the Seller shall not be obliged to correct any defects or provide any warranty services under this Contract.
7.10 Where the Seller has acquired the Goods with the benefit of an original manufacturer’s warranty, it shall use its best endeavours to pass on the benefit of that warranty to the Buyer.
8. Buyer’s responsibilities
8.1 The Buyer will provide the Seller with such information, drawings and designs and other material as it may reasonably need to perform the Contract. The Buyer warrants that such material is accurate and complete.
8.2 The Buyer shall be responsible for ensuring that the Goods are fit for the purpose for which it or any third party intends to use them, and covenants that the Goods will only be used for purposes for which they are sufficient and suitable.
8.3 The Buyer will obtain all necessary licences or authorities which may be needed in connection with the Goods.
8.4 The Buyer warrants that it has not relied on any representations made by or on behalf of the Seller or upon any descriptions, illustrations or specifications contained in any material produced by or on behalf of the Seller save for the Specification of the Goods as agreed between the parties. Any technical information and advice given by the Seller to the Buyer relating to the performance or use of the Goods or otherwise is based on the Seller’s experience, but the Buyer shall not rely on such material and the Seller shall not be liable for its content, unless such information / advice is recorded in writing and appended to the Specification.
8.5 The Buyer warrants that no specification, design, instruction or material given by it to the Seller, nor the intended use of the Goods (whether in combination with any other goods or otherwise) will not infringe any intellectual property or other rights of any third party, nor will it be defamatory or otherwise unlawful, and the Buyer will indemnify the Seller in respect of any claim relating to such infringement.
8.6 The Buyer agrees to indemnify the Seller against all costs and liabilities incurred by it due to any breach by the Buyer of the terms of this Contract or otherwise in connection with the Buyer’s use of the Goods, including any consequential losses.
9. Limitation of Liability
9.1 The Seller shall not be responsible for any defects in the Goods which are not notified in writing to it within the Warranty Period, nor for any defects notified to it within this period but not in accordance with the time limits set out at clause 7 above, nor for any defects which are the fault of the Buyer or any third party.
9.2 The terms of this Contract represent the whole agreement between the parties and all other warranties, conditions, terms, undertakings or representations of any kind, whether express or implied, statutory or otherwise relating to the provision of any goods or services under or in connection with the Contract including (without limitation) as to the condition, quality, performance or fitness for purpose of the Goods or any of them or the standard of care used in the provision of any services are hereby expressly excluded from the Contract save for the undertakings implied by the Sale of Goods Act 1979 section 12 in respect of title to any goods.
9.3 The Seller shall not be liable under contract, tort (including negligence) or otherwise for any loss of production, loss or corruption of data, loss of profits or of contracts, loss of operation time, loss of goodwill and loss of anticipated savings, nor for any indirect or consequential loss, damage, cost or expense of any kind whatever and however caused.
9.4 The Seller accepts liability for death or injury caused by the negligence of the Seller or that of its employees, agents or sub-contractors acting in the course of their engagement under this Contract, and liability which otherwise cannot be excluded by law, without limit.
9.5 In all other cases not falling within clause 9.4, the Sellers total liability (whether in contract, tort including negligence or otherwise) under or in connection with this Contract or based on any claim for contribution or indemnity in respect of any single claim or series of connected claims shall not exceed the Contract Price in aggregate. The Seller may be prepared to provide wider limitation terms in return for an enhanced payment.
9.6 The Seller shall not be liable for any change to the Specification of the Goods if the variation does not materially affect the characteristics of the Goods, and the substituted parts and materials (if any) are of comparable quality to the originals.
9.7 The Buyer agrees that except as expressly provided in this Contract, the Seller will not be under any liability of any kind whatever and however caused, arising directly or indirectly in connection with this Contract.
9.8 Any liability of the Seller under the Contract shall be subject to and conditional upon the due performance by the Buyer of all its obligations under this Contract and, subject to these terms, the Buyer shall not be entitled to withhold or delay payment or exercise any right of set-off which might otherwise have been available to it.
9.9 The Buyer acknowledges and agrees that the allocation of risk contained in this clause 9 is reflected in the Contract Price and is a recognition of the fact that the Goods cannot be tested in every possible combination and therefore the Seller does not warrant that the operation of the Goods will be wholly uninterrupted or error free.
9.10 The Buyer shall maintain such insurance protection as shall be reasonable and prudent, taking account of the nature of the Buyer’s business. The Seller shall not be liable under this Contract for losses suffered by the Buyer which are, or would have been, recoverable under such policy of insurance.
9.11 The Contract Price is fixed taking into account the insurance cover available to the Seller against loss and damage sustained by the Buyer and the Buyer accepts these limitation provisions as being reasonable in all the circumstances.
10. Termination
10.1 The Seller may terminate this Contract or suspend its performance with immediate effect on written notice if the Buyer;
10.1.1 Ceases or threatens to cease to carry on its business or becomes insolvent or enters into liquidation or any formal insolvency process or has a receiver or administrator appointed over any of its assets or issues a dishonoured bill of
exchange;
10.1.2 Commits a material breach of this Contract and, in the case of a breach capable of remedy, fails to remedy it within 14 days of receipt of written notice from the Seller specifying the breach and containing a warning of an intention to
terminate if the breach is not remedied;
10.1.3 Refuses to take delivery of the Goods or any part of them or collect them on the Target Delivery Date or on such later date as they are ready for delivery;
10.1.4 Defaults in paying the Contract Price or any part of it.
10.2 In the event of a suspension, the Seller shall be entitled to demand pre-payment of any part of the Contract Price not yet due for payment as a condition of re-commencing its performance.
10.3 The Seller may terminate this Contract at its discretion at any time by giving 21 days notice in writing to the Buyer.
10.4 Upon termination of this Contract for whatever cause, the Buyer shall pay to the Seller all monies due to the Seller at that date after taking into account amounts previously paid including;
10.4.1 The total value of Goods delivered up to the date of termination, the Contract Price for which shall then become payable immediately notwithstanding any prior contrary arrangement;
10.4.2 Any cancellation charges payable to the Seller’s sub-contractors;
10.4.3 The cost of the Goods ordered for the purposes of the Contract for which the Seller has paid or is legally bound to pay. The Seller may at its discretion retain or take back part or all of the Goods in lieu of the payment attributable to
such material;
10.4.4 The cost of removal from the Delivery Address of any property of the Seller;
10.4.5 any other costs incurred by the Seller in connection with the Contract or its termination including but not limited to loss of profits, processing costs already incurred and any reduction in the value of the material used.
10.5 Termination of this Contract shall not affect any rights of the parties accrued to them up to the date of termination.
11. Force Majeure
11.1 Neither party shall be liable for any delay in performing or failing to perform any of its obligations under this Contract due to any act of God, war, strike, lock-out, industrial action, fire, flood, drought, tempest, supplier delay or other event beyond the reasonable control of either party.
11.2 The party claiming the force majeure event will promptly notify the other of it and will take all reasonable steps to minimise its effect. Any costs associated with such event shall be borne by the party incurring those costs.
11.3 So long as the force majeure event continues, the Buyer may contract with any third party for the goods or services which the Seller is unable to provide as a result.
12. Miscellaneous
12.1 All notices to be given under this Contract shall be in writing and shall be delivered electronically or by fax, or sent to the normal business address of the party concerned by first class post or by hand.
12.2 No delay or failure by the Seller to exercise any of its powers, rights or remedies under this Contract will operate as a waiver of them and any waiver, to be effective, must be in writing.
12.3 If any part of this Contract is found by a court or other competent authority to be invalid, unlawful or unenforceable then such part will be severed from the remainder of this Contract which will continue to be valid and enforceable to the fullest extent permitted by law.
12.4 This Contract is the complete and exclusive statement of the agreement between the parties relating to the subject matter of the Contract and supersedes all previous communications, representations and other arrangements, written or oral.
12.5 The Buyer undertakes not at any time to disclose any confidential information, documents or other material supplied or made known to it during the existence of this Contract by the Seller to any third party, save as permitted by this Contract and save for any information in the public domain, and to use its best endeavours to prevent unauthorised publication or disclosure of the same.
12.6 The Seller shall be entitled to set-off against any monies payable to it by the customer under this Contract, any monies which may be payable by it to the Buyer, whether under this contract or otherwise. The Buyer shall not be entitled to any right of set-off.
12.7 This contract will be construed in accordance with and governed by the laws of England and Wales and each party agrees to submit to the exclusive jurisdiction of the courts of England and Wales.