| Terms and Conditions EUROPEAN DRIVES & MOTOR REPAIRS LIMITED TERMS & CONDITIONS 1. Interpretation (i) In these Conditions “Buyer” means the person whose order for the Goods and/or Services is accepted by the Seller “Buyer’s Equipment” means any equipment belonging to the Buyer in connection with which the Seller is to provide Services in accordance with these Conditions “Conditions” means these standard terms and conditions of sale and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller “Contract” means the contract for the purchase and sale of the Goods and /or Services “Delivery” means the actual or deemed delivery of the Goods and/or return of the Buyer’s Equipment in accordance with Clause 6 “Goods” means the goods (including any instalment of the goods), which the Seller is to supply in accordance with these Conditions “Order Acknowledgement” means the acceptance in writing by the Seller in response to the Buyer’s order, to sell the Goods and/or Services in accordance with the Seller’s quotation “Seller” means European Drives & Motor Repairs Ltd “Services” means the services, including but not limited to repair, which the Seller is to supply in accordance with these Conditions Any reference in these Conditions 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. Basis of the Sale (i) The Seller shall sell and the Buyer shall purchase the Goods and/or Services in accordance with any order of the Buyer, which is accepted by the Seller by way of Order Acknowledgement, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions. (ii) No variation to these Conditions shall be binding unless agreed in writing by a director of the Seller. (iii) Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the Goods and/or Services which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed. (iv) Any typographical or clerical omission in any sales literature, quotation, price list, Order Acknowledgement, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller. 3. Orders (i) All quotations given by the Seller, whether orally or in writing shall be valid for a period of 30 days from the date of quotation. (ii) No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed by way of Order Acknowledgement. (iii) The quantity, quality and description of and any specification for the Goods and/or Services shall be those set out in the Order Acknowledgement. No order which has been accepted by the Seller may be cancelled nor any scheduled date(s) for provision of the Services amended by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials), damages, charges and expenses incurred by the Seller as a result of cancellation or amendment. 4. Price of Goods/Services (i) The price of the Goods shall be the price quoted by the Seller and confirmed in the Order Acknowledgement. (ii) The price for Services to be performed at the Buyer’s premises shall be calculated according to the time spent by the Seller’s personnel in the provision of the Services charged at the time rates applicable to such personnel from time to time. (iii) The price for Services to be performed for the Buyer at the Seller’s premises shall be calculated by reference to the time spent by the Seller’s personnel in the provision of the Services, the complexity of the Services and the cost of any replacement parts, which may be required in order for the Seller to perform the Services. Where possible, the Seller will provide the buyer with an estimate of the price prior to acceptance of the Buyer’s order, however, any estimate given shall be for guidance only and shall not be binding on the Seller. (iv) The Seller reserves the right, by giving notice to the Buyer at any time before delivery to increase the price of the Goods and/or Services to reflect any increase in the cost to the Seller due to any change in delivery dates, quantities or specifications for the Goods and/or Services, which is requested by the Buyer or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions. (v) Except as otherwise stated in the Order Acknowledgement prices for Goods shall be ex-works the Seller and the Buyer shall be liable to pay the Seller’s charges for any transport, packaging and insurance. (vi) The price is exclusive of any applicable value added tax and other taxes including but not limited to import duties which the Buyer shall additionally liable to pay for. 5. Terms of Payment (i) Unless otherwise specified on the Order Acknowledgement the Seller shall be entitled to invoice the Buyer for the price on or at any time after Delivery of the Goods or completion of the Services and the buyer shall pay such balance within a period of 30 days following the date the invoice is issued without any deduction whether by way of set-off, counterclaim or otherwise. Time of payment of the price shall be the essence of the Contract. (ii) If the buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled: (a) to cancel the contract or suspend any further deliveries or Services to be provided to the Buyer; (b) where an order was to be delivered and invoiced in instalments, to invoice the Buyer forthwith for the total value of the remaining instalments not yet invoiced whether or not the dates for delivery of such instalments have fallen due; © to appropriate any payment made by the Buyer to such of the Goods and/or Services (or the goods/services supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer; and (d) to charge interest to the Buyer at a rate of 2% per month above the base rate from time to time of Lloyds TSB Bank plc on the unpaid balance (such interest to accrue on a day to day basis from the due date for payment until receipt by the Seller of the full amount whether before or after judgement); and (e) the Buyer shall indemnify the Seller against all costs and expenses (including any egal costs and expenses on a full indemnity basis) incurred or sustained by the Seller in recovering sums due or in exercising rights pursuant to Clause 5. 6. Delivery of Goods (i) Where the Goods or the Buyer’s Equipment are collected or to be collected by the Buyer, Delivery occurs when handed over to the Buyer or when the Seller notifies the Buyer that the Goods or the Buyer’s Equipment are available for collection. If the seller has agreed to transport the Goods or the Buyer’s Equipment, Delivery shall occur when the Seller or its carrier arrives at the delivery address specified on the Order Acknowledgement and notifies the Buyer or, where the Goods or the buyer’s Equipment are to be delivered to a third party on behalf of the Buyer, the Buyer’s representative of such arrival. (ii) Any dates quoted for Delivery of the Goods or the Buyer’s Equipment are approximate only and the Seller shall not be liable for any delay in Delivery of the Goods or the buyer’s Equipment howsoever caused. (iii) The Seller reserves the right to deliver the Goods in instalments and, in addition, may agree to do so at the request of the Buyer. (iv) If the Buyer or its representative fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions when notified that the Goods are ready for delivery then, without prejudice to any other right or remedy available to the Seller, the Seller may: (a) store the goods until actual delivery and charge the Buyer its storage charges current at the date thereof (including insurance; and (b) in the event that the Buyer or its representative fails to accept delivery for a period of one month the Seller may sell the Goods at the best price readily obtainable and (after deducting all storage, packing, unpacking, transport and abortive delivery costs and selling expenses) charge the Buyer for any shortfall below the price under the Contract. 7. Risk and Property (i) Risk of damage to or loss of the Goods shall pass to the Buyer upon Delivery. (ii) Notwithstanding Delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due. (iii) Until such time as the property in the Goods passes to the buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored protected and insured. (iv) Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are situated and repossess the Goods. (v) The Seller shall be entitled to a lien over any of the Buyer’s Equipment in the Sellers possession until all sums due or owing from the Buyer on any account shall have been satisfied in full. 8. Services (i) The Seller shall use its reasonable endeavours to provide the Services on the date or within the period (if any) specified in the Buyer’s order as confirmed in the Order Acknowledgement (“the Specified Period”) provided that the Buyer complies with its obligations under condition 8(ii) below. (ii) The Buyer shall ensure: (a) in the event that the Services are to be performed at the Buyer’s premises, that the Seller’s personnel are provided with access to such areas of the Buyers premises and to such information and co-operation as they shall require in order to perform the Services and shall ensure the health and safety of such personnel, maintaining adequate insurance in the respect; and (b) in the event that the Services are to be performed at the Seller’s premises, that the Seller is provided promptly with such information as it may require in connection with the Services (iii) In the event that the Buyer fails to comply with its obligations under condition 8(ii) above, whilst the Seller will attempt to perform the Services within the Specified Period, the Seller shall not be liable to the buyer for any failure to do so. 9. Warrants and Liabilities (i) Subject to the conditions set out below, the Seller’s sole liability in respect of Goods supplied to the Buyer shall be to pass on to the Buyer, to the extent that it is able any benefits obtainable under any warranty given by the manufacturer of the Goods provided that the Goods have been accepted and paid for. (ii) The Seller warrants that the Services will be provided with reasonable care and skill and subject to the conditions set out below, warrants: (a) that any Buyer’s Equipment repaired by the Seller on the Buyer’s premises including any spare parts supplied by the Seller will remain in working order for a period of 3 months from the date of completion of such Services; (b) that any buyer’s Equipment, being electronic equipment, repaired by the Seller at the Seller’s premises will be restored to manufacturer’s specification and will remain in working order for a period of three months from Delivery; © that any Buyer’s Equipment other than electronic equipment, repaired by the Seller at the Seller’s premises will be restored to manufacturer’s specification and will remain in working order for a period of twelve months from Delivery; (d) any installation Services performed by the Seller at the Buyer’s premises for a period of twelve months from the completion of such Services; (iii) The above warranties are given to the Buyer subject to the following conditions in respect of which the Seller shall be under no liability:- (a) any defects arising in the Goods as a result of installation unless such installation was carried out by the Seller; (b) to the extent to which the Seller has informed the Buyer on or before completion of the Services that the Buyer’s Equipment cannot be restored to the manufacturer’s specification due to age or other factors and the Seller may stipulate a specific warranty for such Equipment; © to the extent that any defects in the Goods or the Buyer’s Equipment following repair are caused by other equipment of the Buyer, whether defective or otherwise; (d) in respect of any defect arising from fair wear and tear, wilful damage, negligence, incorrect movement, misuse or alteration or repair of the Goods or Buyer’s Equipment without the Seller’s approval; (e) in the event that the quality inspection label placed on the Buyer’s Equipment following repair, has been removed; and (f) provided that the Buyer returnes the defective Goods or Buyer’s Equipment (unless the Services were performed at the Buyer’s premises) to the Seller’s premises at the Buyer’s cost within 7 days after notification of the defect in accordance with clause 9(v). (iv) In the event of loss or damage occurring to the Goods or the buyer’s Equipment during transit where the Goods or buyer’s Equipment are transported by the Seller or its carrier the Buyer must give written notice to the Seller within two working days of the date of Delivery and further where such Goods or Buyer’s Equipment are consigned by a carrier of the Seller the Buyer or its representative must in addition comply in all respects with the carrier’s conditions of carriage for notification of omissions from the delivery or loss or damage in transit. The Buyer must give written notice to the Seller within three working days of receipt of invoice if the Goods or the Buyer’s Equipment have not been delivered by the Seller or its carrier to the destination agreed in the Contract. Failure to give written notice pursuant to this sub-clause shall mean that the Buyer or its representative shall be deemed to have accepted the Goods or Buyer’s Equipment as being in good order and in conformity with the Contract. (v) Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or Services or their failure to correspond with specification shall be notified in writing to the Seller within 3 days from the date of Delivery or completion or (where the defect or failure was not apparent on reasonable inspection) within 3 days after discovery of the defect or failure. If the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and/or Services and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods and/or Services had been delivered or performed in accordance with the Contract. (vi) Where any claim in respect of any of the warranties in clause 9(ii) is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to a reasonable opportunity to inspect the buyer’s Equipment the subject of the claim, and where such claim is a valid claim, the Seller shall; (a) in the case of any spare parts supplied as part of the Services replace the spare part in question free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of such spare part; or (b) in the case of Services, re-perform the Services free of charge, or, at the Seller’s sole discretion, refund to the Buyer the price of the Services (or a proportionate part of that price) but the Seller shave have no further liability to the Buyer. (vii) Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss or profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods and/or Services or their use by the Buyer, except as expressly provided in these Conditions and for direct damage to the Buyer’s property caused by the Seller’s negligence. (viii) The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of delay in performing, or any failure to perform, any of the Seller’s obligations in relating to the Goods and/or Services, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the forgoing, the following shall be regarded as causes beyond the Seller’s reasonable control: Act of God, explosion, flood, tempest, fire or accident; war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or a third party; difficulties in obtaining raw materials, labour, fuel, parts of machinery; power failure or breakdown in machinery. (ix) Subject as expressly provided in these conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. (x) Save for liability for death or personal injury resulting from the negligence of the Seller, the Seller’s aggregate liability under any one claim or under the total of all claims arising from any one act or default of the Seller howsoever such claim or claims arise (be it negligence, breach of contract, misrepresentation or otherwise) shall in no circumstances exceed one and half (1.5) times the price of the Goods and Services which are the subject of the claim. 10. Insolvency of Buyer (i) This Clause applies if: (a) the buyer makes any voluntary arrangements with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or (b) an encumbrancer takes possession, or an administrative receiver or administrator is appointed, of any of the property or assets of the Buyer; or © the Buyer ceases, or threatens to cease, to carry on business or suffers any action in consequences or debt; or (d) the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly. (ii) If this Clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without liability to the Buyer, and if the Goods and/or Services have been delivered but not paid for the price shall be come immediately due and payable notwithstanding any previous agreement or arrangement to the contrary. 11. General (i) No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision. (ii) If any provision of these Conditions is held by a competent authority to be invalid or enforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected thereby. (iii) The Contract shall be governed by the laws of England and any dispute arising out of or in connection with it shall be determined by the non-exclusive jurisdiction of the English courts. « Back |
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