1. Interpretation
1.1 Definitions:
“Business Day” means a day (other than a Saturday, Sunday or public holiday)
“Conditions” means the terms and conditions set out in this document.
“Contract” means the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
“Customer” means the person or firm who purchases the Goods from the Supplier.
“Force Majeure Event” means an event or circumstance beyond a party's reasonable control.
“Goods” means the goods (or any part of them) set out in the Order.
“Incoterms” means 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.
“Intellectual Property Rights” means intellectual property rights of any nature anywhere in the world whether registered, registerable or otherwise, including without limitation any patents, trademarks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in database, moral rights, know-how and any other intellectual property rights which subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures, and particulars of customers, marketing methods and procedures and advertising literature, including the “look and feel” of any websites.
“Order” means the Customer's order for the Goods, as set out in the Customer's purchase order form.
“Specification” means any specification for the Goods.
“Supplier” means Identec Limited (registered in England and Wales with company number 03043507).
“Supplier Software” means any software provided by the Supplier to the Customer for use with the Goods.
“WEEE Directive” means the Waste Electrical and Electronic Equipment Directive 2012/19/EU, and any relevant implementing legislation applicable in England and Wales.
1.2 Interpretation
1.2.1 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.
1.2.2 any 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.
1.2.3 a reference to writing or written includes faxes and emails.
2. Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer 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 Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.5 Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue
3. Goods
3.1 The Goods are described in the Supplier's catalogue or on its website, subject to the applicable Specification.
3.2 To the extent that the Goods are to be manufactured or modified in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's Intellectual Property Rights arising out of or in connection with the Supplier's use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
4. Delivery
4.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the contract, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.2 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
4.4 Any dates quoted for delivery 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 Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to refunding the purchase price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier's failure to comply with its obligations under the Contract:
4.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
4.6.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If ten Business Days after the day on which the Supplier has notified the Customer that the Goods were ready for delivery the Customer has not accepted actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, shall charge the Customer for any shortfall below the price of the Goods.
4.8 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. Customer Obligations
5.1 The Customer shall:
5.1.1 ensure that the Order and any information it provides is complete and accurate;
5.1.2 ensure that it has suitably prepared the Delivery Location to receive the Goods;
5.1.3 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Goods and ensure that such information is accurate in all material respects;
5.1.4 obtain and maintain all necessary licences, permissions and consents which may be required for the Goods; and
5.1.5 ensure that any disposal of the Goods is dealt with in accordance with the WEEE Directive and any other applicable law. For this purpose, the Supplier confirms that it is registered under the WEEE Directive (Reg. No: GB0087VR) and will accept the return of Goods for the purposes of such disposal.
5.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
5.2.1 the Supplier shall without limiting its other rights or remedies have the right to suspend the supply of Goods until the Customer remedies the Customer Default, and shall rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
5.2.2 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 5.2; and
5.2.3 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
6. Quality
6.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Goods shall:
6.1.1 conform in all material respects with their description; and
6.1.2 be free from material defects in design, material and workmanship; and
6.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and
6.1.4 be fit for any purpose held out by the Supplier.
6.2 Subject to clause 6.3, if:
6.2.1 the Customer gives notice in writing to the Supplier during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1;
6.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
6.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Supplier's cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
6.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 6.1 in any of the following events:
6.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 6.2;
6.3.2 the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
6.3.3 the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
6.3.4 where the Supplier has not surveyed the installation site of the Goods (Installation Site) prior to their installation, the defect arises as a result of any environmental or other third party factors including without limitation radio or other electromagnetic interference present at the Installation Site;
6.3.5 where the Supplier has surveyed the Installation Site prior to installation, the defect arises as a result of any environmental or other third party factors including without limitation radio or other electromagnetic interference present at the Installation Site which were not present at the time of the Supplier’s survey;
6.3.6 the Customer alters or repairs such Goods without the written consent of the Supplier;
6.3.7 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
6.3.8 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.4 Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 6.1.
6.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
6.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
7. Title and risk
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
7.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
7.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
7.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.1; and
7.3.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
7.4 Subject to clause 7.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
7.4.1 it does so as principal and not as the Supplier’s agent; and
7.4.2 title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
7.5 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.1, then, without limiting any other right or remedy the Supplier may have:
7.5.1 the Customer's right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
7.5.2 the Supplier may at any time:
(a) require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
8. Price and payment
8.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier's published price list in force as at the date of delivery.
8.2 The Supplier may, by giving notice to the Customer at any time up to 10 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
8.2.1 any factor beyond the Supplier's control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
8.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
8.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
8.3 The price of the Goods:
8.3.1 excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT invoice; and
8.3.2 excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
8.4 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
8.5 The Customer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time for payment is of the essence.
8.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank UK plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
9. Termination
9.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
9.1.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of that party being notified in writing to do so;
9.1.2 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.1.3 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
9.1.4 the Customer's financial position deteriorates to such an extent that in the Supplier's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.1.1 to clause 9.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest.
9.5 Termination of the Contract shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
10. Limitation of liability
This clause 10 limits the Supplier’s liability in the event of a claim against it. It is important that the Customer understands how the limitation works and puts into place its own arrangements to cover any losses that may arise which are excluded by the operation of this clause.
10.1 Nothing in these Conditions shall limit or exclude the Supplier's liability for:
10.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
10.1.2 fraud or fraudulent misrepresentation;
10.1.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
10.1.4 defective products under the Consumer Protection Act 1987; or
10.1.5 any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
10.2 Subject to clause 10.1:
10.2.1 the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
10.2.2 the Supplier's total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the purchase price of the Goods.
11. Force majeure
Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for a period of more than 3 months, the party not affected may terminate this Contract by giving 10 Business Days written notice to the affected party.
12. Export Sales
12.1 Where Goods are supplied for export from mainland United Kingdom, the provisions of this clause shall (subject to any special terms agreed in writing between the Customer and the Supplier) apply, notwithstanding any other provision of these Conditions.
12.2 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 clause.
12.3 If there is any conflict between the provisions of the Incoterms and this clause, or any other provision in these Conditions and this clause, the terms of this clause shall prevail.
12.4 Export sales are effected on a CPT basis and risk in the Goods shall transfer to the Customer accordingly.
12.5 Payment for the Goods shall be made in GBP Sterling unless otherwise agreed by the Supplier and the Customer in writing.
12.6 The Customer 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 thereon.
12.7 The Supplier shall not be liable for any loss or damage as a result of any deliveries which are delayed or unperformed due to export control regulations, embargoes or any other checks.
12.8 In the event that export licences shall be required the Supplier shall take all reasonable steps to procure them and the cost thereof shall be chargeable to the Customer (including a reasonable charge for the time expended by the Supplier in connection therewith and the Supplier’s out-of-pocket expenses). The Customer shall take all reasonable steps to procure any import licences required and bear and pay any expenses in connection with the importation of the Goods. The Contract shall be conditional upon all such licences and consents being obtained within a reasonable time.
13. Supplier Software
13.1 Where Supplier Software is provided to the Customer under the Contract the provisions of this clause 13 shall apply.
13.2 The Supplier to the extent it is able grants the Customer a non-exclusive, non-transferable, fully paid up licence to use the Supplier Software in an unmodified form with any compatible Goods supplied by the Supplier under the Contract.
13.3 The Customer agrees that it shall not, and it shall procure that no other person acting on its behalf shall, decompile, disassemble or otherwise reverse engineer any portion of the Supplier Software.
13.4 The Customer shall not permit the removal of any existing copyright notice or other restrictive or proprietary legend from any of the Supplier Software.
13.5 The Supplier Software may not be used by, or pledged or delivered to, any party other than the Customer.
13.6 The Customer shall not make any unauthorised copies of the Supplier Software.
13.7 The Customer agrees that all relevant parts of the Supplier Software shall be and shall remain the exclusive property of the Supplier.
14. Intellectual Property
All Intellectual Property Rights in or arising out of or in connection with the Goods and the Supplier Software shall be owned and shall remain the property of the Supplier
15. General
15.1 Assignment and other dealings.
15.1.1 The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
15.1.2 The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
15.2 Entire agreement
15.2.1 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.2.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
15.3 Variation
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.4 Waiver
No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
15.5 Severance
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
15.6 Notices
15.6.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or fax or email.
15.6.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 15.6.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
15.6.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
15.7 Third party rights
No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
15.8 Governing law
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England.
15.9 Jurisdiction
Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
