1.1 Definitions: In these Conditions, the following words shall have the following meanings: Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
Buyer: the purchaser of the Goods from the Supplier.
Conditions: the terms and conditions set out in this document.
Contract: the contract between the Supplier and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
Delivery Point: the location for delivery of the Goods;
Force Majeure Event: as defined in condition 11.1.
Goods: the goods (or any part of them) set out in the Order.
Manufacturer: the manufacturer of the relevant Goods.
Manufacturer’s Specifications: any description or specification for the Goods included in any catalogues, brochures or other materials published by or on behalf of the Manufacturer.
Order: the Buyer’s order for the Goods, as set out in the online order form submitted by the Buyer, the Buyer's purchase order form, the Buyer’s written acceptance of the Supplier's quotation, overleaf, or as otherwise submitted by the Buyer to the Supplier, as the case may be.
Supplier: Ecolution Products Limited, Ecolution House, Endeavour Park, London Road, Addington, West Malling, Kent ME19 5SH
Supplier’s Registered Office: 32-34 St. Johns Road, Tunbridge Wells, Kent TN4 9NT
1.2 Construction: In these Conditions, the following rules apply:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality).
1.2.2 A reference to a party includes its successors or permitted assigns.
1.2.3 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.4 A phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2.5 A reference to writing or written includes faxes and emails.
2. THE CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, or, if earlier, delivers the Goods, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or any other contract between the Supplier and the Buyer for the sale of the Goods.
2.5 Any quotation for the Goods provided by the Supplier shall not constitute an offer. Unless otherwise expressly set out therein, a quotation shall only be valid for a period of 30 days from the date of issue. Any acceptance by the Buyer of a quotation from the Supplier shall constitute an Order (which is subject to acceptance by the Supplier in accordance with these Conditions).
2.6 Subject to any variation under condition 2.7, the Contract shall be on the terms set out in these Conditions to the exclusion of all other terms and conditions (including any terms and conditions which the Buyer purports to apply by amending these Conditions or otherwise) No terms or conditions endorsed on, delivered with or contained in the Buyer's purchase order, order confirmation, specification or other document shall form part of the Contract.
2.7 Any variations to these Conditions shall have no effect unless expressly agreed in writing by the Supplier and the Buyer.
3.1 The quantity and description of the Goods shall be as set out in the Order.
3.2 The Supplier shall have no liability in respect of and does not provide any warranty in relation to the Manufacturer’s Specifications, whether the same have been supplied by the Supplier to the Buyer or not.
4.1 The price payable for the Goods shall, unless otherwise expressly agreed in writing between the Supplier and the Buyer, be the price set out in the Order, or, if no price is set out in the Order, either, if relevant, the price set out in any quotation provided by the Supplier to the Buyer which has been accepted by the Buyer within the time period for acceptance as referred to in condition 2.5, or, the price set out in the Supplier’s published list as at the date of submission of the Order by the Buyer.
4.2 The price of the Goods is exclusive of value added tax, which shall be payable by the Buyer, subject to receipt of a VAT invoice, at the applicable rate.
4.3 Except where the Delivery Point is the Supplier’s Premises, the price of the Goods is exclusive of the costs of carriage and insurance to the Delivery Point, which shall be payable by the Buyer and the Buyer shall be responsible for off-loading the Goods at the Delivery Point.
4.4 Unless otherwise expressly agreed in writing by the Supplier, the Delivery Point shall be within the United Kingdom. If it is agreed that the Delivery Point is to be outside the United Kingdom, then the price shall be exclusive of all local taxes and/or import duties which shall be payable by the Buyer and, if incurred by the Supplier, the Buyer shall reimburse the Supplier in respect thereof within 14 days of receipt of an invoice in respect of the same.
4.5 The Supplier may invoice the Buyer for the Goods and any costs in respect of carriage or insurance payable by the Buyer on or at any time following acceptances of the Buyer’s Order for the Goods. The Buyer shall pay the invoice in full as per agreed account terms but no longer than 30 days of the date of the invoice date, or a partial payment in accordance with the credit limit assigned. Time of payment shall be of the essence.
4.6 All payments received, if not supported by a remittance advice , will be allocated to the oldest invoices on the account.
4.7 No payment shall be deemed to have been received until the Supplier has received cleared funds.
4.8 If the Buyer fails to pay the Supplier any sum due, the Buyer shall be liable to pay interest to the Supplier on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of HSBC PLC, accruing on a daily basis until payment is made, both before or after any judgment.
4.9 As an alternative to the interest rate set out in condition 4.7, the Supplier reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
4.10 The Buyer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Buyer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set-off an amount owing by it to the Buyer against any amount payable by the Supplier to the Buyer.
5.1 The Supplier shall deliver the Goods to the location set out in the Order or such other location as is agreed in writing between the Supplier and the Buyer. In the absence of any location specified in the Order or otherwise agreed between the parties, delivery shall take place at the Supplier’s Premises.
5.2 Delivery of the Goods shall be completed:
5.2.1 where the Supplier is arranging for the carriage of the Goods, when the Goods arrive at the Delivery Point (subject to the Buyer’s right to refuse delivery in accordance with condition 5.5).
5.3 Any dates quoted or accepted by the Supplier for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Buyer’s failure to provide the Supplier with adequate delivery instructions or any other instructions which are relevant to the supply of the Goods.
5.4 If the Goods have not been delivered by the date or, if relevant, by the end the time period given by the Supplier as the approximate date/period for delivery then, unless the delay is caused by a Force Majeure Event or the Buyer’s failure to provide the Supplier with adequate delivery instructions or any other instructions which are relevant to the supply of the Goods or the Goods have not been collected by the Buyer in accordance with condition 5.6, then the Buyer shall be entitled to give written notice to the Supplier requiring the Supplier to deliver the Goods or, if relevant, make them available for collection from the Supplier’s Premises, within not less than 10 days following receipt of such notice, whereupon, if the Supplier fails to comply, the Buyer may terminate the Contract forthwith on written notice to the Supplier.
5.5 Where the Delivery Point is other than at the Supplier’s Premises, the Supplier shall use its reasonable endeavours to keep the Buyer reasonably informed of the anticipated time and date of delivery and the Buyer shall accept delivery of the Goods at the Delivery Point provided that it has received not less than 24 hours’ notice of such delivery. If it has received less than 24 hours’ notice then, unless the delivery is being made on the delivery date or within the delivery period specified in the Order or otherwise agreed between the parties, then the Buyer may refuse to accept delivery if it not reasonable to expect the Buyer to accept delivery on that date taking into account the Buyer’s ability to grant access to the Delivery Point on that date and any material inconvenience to the Buyer in complying.
5.6 If the Buyer either fails to take delivery of the Goods within the time limit specified in condition 5.6 or, where the Delivery Point in other than the Supplier’s Premises, if the Buyer fails to accept delivery of any of the Goods at the Delivery Point (except in circumstances where it is reasonable for the Buyer to refuse to accept delivery as set out in condition 5.5), then the Supplier may store the Goods until delivery is effected and the Buyer shall be liable for all reasonable costs, expenses and loss incurred by the Buyer in connection with such failure including, without limitation, additional transport costs, storage costs and insurance costs.
5.7 The Supplier may deliver the Goods by instalments. Each instalment shall be invoiced and paid for in accordance with the provisions of the Contract and shall be a separate Contract. No cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
6.1 The quantity of Goods as recorded by the Supplier on the proof of delivery signed by the Buyer shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
6.2 Any liability of the Supplier for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata rate against any invoice raised for such Goods.
7.1 Each of the sub-conditions in condition 8 shall be treated as separate and independent.
7.2 The Supplier hereby excludes to the fullest extent permitted by law all warranties, conditions and other terms implied by statute, common law or otherwise save those expressly set out in these Conditions and those implied by section 12 of the Sale of Goods Act 1979.
7.3 Subject to conditions 8.5 and 8.6, if:
7.3.1 the Buyer gives notice in writing to the Supplier within 7 days of delivery of the Goods that some or all of the Goods do not comply with the warranty set out in condition 8.3; and
7.3.2 the Supplier (including its agents, subcontractors, consultants or employees) is given a reasonable opportunity of examining such Goods; and
7.3.3 at the request of the Supplier, the Buyer returns to the Supplier’s Premises at the Buyer’s cost all or any part of the Goods as are requested by the Supplier or, if requested by the Supplier, permits the Supplier to remove the Goods, the Supplier shall, at its own option, repair or replace the defective Goods, or refund the price of the defective Goods (whereupon it shall have no further liability for a breach of the warranty in condition 8.3 in respect of such Goods).
7.4 The Supplier shall not be liable for any failure to comply with the warranty set out in condition 8.3 if:
7.4.1 the Buyer makes any further use of such Goods after giving notice in accordance with condition 8.4; or
7.4.2 the defect arises because the Buyer failed to follow the Supplier’s or the Manufacturer’s oral or written instructions as to the storage, commissioning, installation, use and/or maintenance of the goods or (if there are none) good trade practice; or
7.4.3 the Buyer alters or repairs such Goods without the written consent of the Supplier;
7.4.4 the defect arises as a result of fair wear and tear, wilful damage, negligence by the Buyer or any third party, or abnormal storage or working conditions.
7.5 The warranties contained in condition 8.3 do not include:
7.5.1 any equipment, materials or supplies not supplied by the Supplier,
7.5.2 damage or loss of function sustained during periods with wind speeds exceeding 60 metres/second or submersed in water unless the Goods are designed to operate in such conditions,
7.5.3 any accidental loss or damage not caused by the Supplier or any loss or damage caused by any acts of God or any loss or damage to the extent contributed by any acts of God.
7.7 These Conditions apply to any repaired or replacement Goods supplied to the Buyer.
7.8 Except as provided for in this condition 8, the Supplier shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in condition 8.3. Subject to condition 9.1, the Buyer’s sole remedy in respect of a breach of the warranty in condition 8.3 shall be as set out in condition 8.4 and subject to the requirements imposed upon the Buyer in condition 8.4.
8. LIMITATION OF LIABILITY
8.1 Nothing in these Conditions excludes or limits the liability of the Supplier:
8.1.1 for death or personal injury caused by the Supplier's negligence; or
8.1.2 breach of terms implied by section 12 of the Sale of goods Act 1979;
8.1.3 for any matter which it would be illegal for the Supplier to exclude or attempt to exclude its liability; or
8.1.4 for fraud or fraudulent misrepresentation.
8.2 Subject to condition 9.1, the Supplier shall not be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any indirect or consequential loss including any losses that result from the Supplier’s deliberate personal repudiatory breach of the Contract.
8.3 Subject to condition 9.1, the Supplier shall not be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:
8.3.1 any loss of profit;
8.3.2 any loss of business or opportunity;
8.3.3 any loss of anticipated savings; or
8.3.4 any loss of energy supply.
8.4 Subject to condition 9.1, the Supplier’s total liability to the Buyer in respect of all losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise shall not exceed 125% of the price paid or payable by the Buyer for the relevant Goods.
8.5 The Buyer expressly acknowledges that by entering into contract with the Supplier it acknowledges and agrees the exclusions and limitations of liability set out herein and that the price which has been agreed for the Goods reflects the level of liability accepted by the Supplier. The Buyer further acknowledges that it is its own responsibility to seek legal advice on the meaning and effect of these exclusions and limitation of liability and that it is able to and should seek to protect itself against any potential loss or damage which is not recoverable from the Supplier by means of obtaining insurance from third party providers.
9.1 All communications between the parties shall be in writing and delivered by hand or sent by pre-paid first class post or fax or email to the address in the United Kingdom, email address or fax number notified to the other party from time to time and shall be deemed to have been received if sent by pre-paid first class post, two Business Days after posting (exclusive of the day of posting); or if delivered by hand, on the day of delivery; or if sent by fax or email on a Business Day prior to 4.00 pm, at the time of transmission and otherwise on the next Business Day.
10. FORCE MAJEURE
10.1 A party, provided that it has complied with the provisions of condition 11.2, shall not be in breach of the Contract, nor liable for any failure or delay in performance of any obligations under the Contract (and, subject to clause 11.3.3, the time for performance of the obligations shall be extended accordingly) arising from or attributable to acts, events, omissions or accidents beyond its reasonable control (Force Majeure Event), including but not limited to any of the following:
10.1.1 acts of God, including but not limited to fire, flood, earthquake, windstorm or other natural disaster;
10.1.2 war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions;
10.1.3 terrorist attack, civil war, civil commotion or riots;
10.1.4 nuclear, chemical or biological contamination or sonic boom;
10.1.5 mandatory compliance with any law (including a failure to grant any licence or consent needed or any change in the law or interpretation of the law);
10.1.6 fire, explosion or accidental damage;
10.1.7 loss at sea;
10.1.8 adverse weather conditions;
10.1.9 collapse of building structures, failure of plant machinery, machinery, computers or vehicles;
10.1.10 any labour dispute, including but not limited to strikes, industrial action or lockouts;
10.1.11 non-performance by companies or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); and
10.1.12 interruption or failure of utility service, including but not limited to electric power, gas or water.
10.2 The corresponding obligations of the other party will be suspended to the same extent as those of the party first affected by the Force Majeure Event.
10.3 Any party that is subject to a Force Majeure Event shall not be in breach of the Contract provided that:
10.3.1 it promptly notifies the other parties in writing of the nature and extent of the Force Majeure Event causing its failure or delay in performance; and
10.3.2 it could not have avoided the effect of the Force Majeure Event by taking precautions which, having regard to all the matters known to it before the Force Majeure Event, it ought reasonably to have taken, but did not; and
10.3.3 it has used all reasonable endeavours to mitigate the effect of the Force Majeure Event to carry out its obligations under this agreement in any way that is reasonably practicable and to resume the performance of its obligations as soon as reasonably possible.
10.4 If the Force Majeure Event prevails for a continuous period of more than three months, any party may terminate the Contract by giving written notice to the other party, whereupon the Contract will terminate. Such termination shall be without prejudice to the rights of the parties in respect of any breach of the Contract occurring prior to such termination.
11. ENTIRE AGREEMENT
11.1 The Contract constitutes the whole agreement between the parties and supersedes all previous agreements between the parties relating to its subject matter.
11.2 Each party acknowledges that, in entering into the Contract, it has not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than for breach of contract.
11.3 Nothing in this condition shall limit or exclude any liability for fraud.
12. ASSIGNMENT AND SUBCONTRACTING
12.1 The Supplier may at any time assign or transfer all or any of its rights under the Contract.
12.2 The Buyer may not assign or transfer or purport to assign or transfer all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
12.3 The Supplier may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent provided that the Supplier shall remain liable for such performance.
13.1 Failure or delay by the Supplier in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract. Any waiver by the Supplier of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
13.2 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
13.3 This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law, and the parties submit to the exclusive jurisdiction of the English courts.
13.4 Each right or remedy of the Supplier under the Contract is without prejudice to any other right or remedy of the Supplier howsoever arising.