Terms
1. DEFINITIONS
In these Conditions:
ETDYN European Thermodynamics Ltd.
Buyer means the party with whom ETDYN contracts
Contract means the contract made between ETDYN and the Buyer for supply of the Goods which are subject to these Conditions
Goods means all or any of the goods works and materials to be supplied by ETDYN
Act of Insolvency
means any one or more of the following namely the passing of a resolution or the presentation of a petition for winding-up, bankruptcy or for the
appointment of an administrator, the appointment of a receiver and/or manager or administrative receiver over the whole or any part of the
Buyer's undertaking and assets, the making of a proposal for a voluntary arrangement within the Insolvency Act 1986 or of a proposal for any
other composition scheme or arrangement with or the calling by the Buyer of any meeting of its creditors generally, the levying of execution or
distress or diligence on any of its assets, the failure to pay its proper debts as and when due and anything analogous to any of the foregoing
under the law of the jurisdiction where the Buyer is established
2. CONSTRUCTION OF CONTRACT
These Conditions shall apply to all contracts of sale between ETDYN and the Buyer.
The terms of the Contract shall consist of the particulars set out in ETDYN’s Order Acknowledgement and these Conditions. Any term in ETDYN’s Order
Acknowledgement which is at variance with these Conditions shall prevail over these Conditions, which shall be construed accordingly, except with regard to price in
respect of which condition 0 shall prevail.
No other terms (whether contained in any document issued by the Buyer or in any written or oral communication between the parties) shall apply to the Contract nor shall
these Conditions or the particulars contained in ETDYN’s Order Acknowledgement be modified without ETDYN’s written agreement. ETDYN shall be entitled to amend
technical specifications of the Goods without notice.
In order that these Conditions and the particulars in ETDYN’s Order Acknowledgement shall be a complete record of the agreement between the parties with regard to the
sale of the Goods, the Buyer must ensure that any pre-contractual representation on which the Buyer wishes to rely has been specified in those particulars. In entering
into the Contract, the Buyer does not rely upon any such representation made by or on behalf of ETDYN which has not been so specified.
3. QUOTATIONS AND ORDERS
Unless accepted before lapse or withdrawal, or renewed in writing by ETDYN, quotations shall lapse automatically after 30 days, but maybe withdrawn earlier.
Quotations are information only and are not firm offers. There shall be no binding contract until ETDYN has accepted the Buyer’s order by despatching ETDYN’s official
Acknowledgement of Order or invoice
4. DELIVERY
Although ETDYN win endeavour to deliver Goods within any delivery time specified in ETDYN’s Acknowledgement of Order, that time is an estimate only and not a term
of the Contract and as such, time shall not be of the essence. ETDYN shall not be liable for any failure to meet any such estimate, nor for any loss, of whatsoever nature
resulting directly or indirectly therefrom.
Any such time specified shall be extended by any period during which the manufacture or delivery of the Goods or other work by ETDYN in connection with the Contract
is delayed due to fire, explosion, flood, storm, tempest, sabotage, strikes (official and unofficial), riot, invasion, acts of war, shortage of labour, power or materials, civil
commotion, accidents, plant breakdowns, compliance with an order of an apparently competent authority, and any other event beyond ETDYN’s control.
If any such delivery time is so extended by more than 90 days the Buyer shall be entitled to give written notice to ETDYN requiring the Goods to be delivered within 30
days of the date of such notice failing which the Buyer shall have the right to give further written notice terminating the contract forthwith.
ETDYN shall be entitled to deliver the Goods by instalments and/or in advance of the estimated date. Each delivery shall constitute a separate contract to which these
Conditions shall apply. Failure by ETDYN to deliver any one or more of the instalments or any claim by the Buyer in respect of any one or more instalments shall not
entitle the Buyer to treat the Contract as a whole as repudiated
In the case of United Kingdom and Overseas customers, unless otherwise stated, ETDYN will deliver to the Buyer’s premises and will charge separately for packing,
carriage and handling.
The delivery by ETDYN of a greater or lesser quantity provided for in the Contract, the delivery of other goods not provided for in the Contract, or the delivery of Goods
only some of which are defective, shall not entitle the Buyer to reject all of the Goods delivered. In order that ETDYN can comply with its carrier’s conditions, a claim in
respect of error in quantity or type of Goods in respect of the condition of the Goods delivered must be made in writing to ETDYN within 3 days or to the carrier and
ETDYN within 5 days of receipt. Failure to make such claim shall constitute unqualified acceptance of the Goods and waiver by the Buyer of all claims relating to error in
quantity or type of Goods delivered or relating to the condition of Goods delivered. Similarly, if any Goods invoiced by ETDYN are not received by the Buyer, the Buyer
must notify ETDYN within 25 days or the carrier and ETDYN within 28 days of the date of invoice, failing which the Buyer will be liable to pay for the Goods in full.
ETDYN shall at its option make good any non-delivery short delivery or damage of Goods notified in accordance with Condition 4(6) by repair or replacement of such
Goods and save as provided in this Condition shall not be liable for any such non-delivery short delivery or damage in transit nor for any loss, financial or otherwise
resulting directly or indirectly therefrom. In no event shall ETDYN be liable to the Buyer in connection with any damage or loss in transit where delivery takes place at
ETDYN's premises.
If the Buyer fails to take delivery of or collect the Goods or fails to give ETDYN adequate delivery instructions after notification by ETDYN that the Goods are ready
ETDYN may (without prejudice to its other rights and remedies): store the Goods (on its own or any third party's premises) and charge the Buyer for its reasonable costs
(including without limitation VAT costs of storage, carriage and insurance); and/or sell the Goods at any time and after deducting all costs and expenses account to the
Buyer for any excess over the price already paid under the Contract or charge the Buyer for any shortfall between the Contract price and such costs and expenses.
All returnable containers and packing materials will be charged for, but credit will be given if these are returned in condition satisfactory to ETDYN, to ETDYN's works
carriage paid within thirty days following delivery of the relevant Goods.
5. PROPERTY AND RISK
The risk in the Goods shall pass to the Buyer upon despatch of the Goods from ETDYN's warehouse.
Notwithstanding delivery and the passing of risk, property in and title to the Goods shall remain in ETDYN until ETDYN has received payment of all sums owing to
ETDYN under the Contract and any other contract with the Buyer whatsoever.
Until property in and title to the Goods passes to the Buyer: the Buyer shall keep the Goods properly stored, protected and insured and separate from all or any other
goods whether belonging to ETDYN, the Buyer, or any third party; ETDYN shall be entitled at any time forthwith to revoke the Buyer's power to deal with the Goods; and it
shall automatically cease if the Buyer shall commit or be subject to any Act of Insolvency; and the Buyer shall not make any modification to the Goods or their packaging
or alter remove or tamper with any marks, numbers or other means of identification used on or in relation to the Goods. Upon termination of the Buyer's power to deal
with the Goods, the Buyer shall place the Goods at the disposal of ETDYN and ETDYN and its servants and agents are hereby irrevocably authorised without the need for
consent of any third party but using only such force as may be necessary, to enter upon any premises of the Buyer or any third party for the purpose of removing the
Goods.
If any of the foregoing provisions of this Condition shall be invalid or unenforceable such invalidity or unenforceability shall not affect the remaining provisions.
6. PRICES
Unless otherwise stated in ETDYN’s Order Acknowledgement, prices for the Goods shall be ex-works, and shall be exclusive of VAT, packing, carriage, insurance, and
any other costs, all of which shall be the subject of additional charges. VAT shall be charged where appropriate at the rate prevailing at the relevant tax point.
Any price quoted by the Company is based upon costs current as the date of quotation. The price charged to the Customer under the Contract may be changed to take
account of costs current at the date of invoice. Such changes may include, but are not limited to, fluctuations in rates of currency where the Goods or any part thereof,
are sourced from third countries.
7. PAYMENT
Subject to prior written agreement to the contrary, ETDYN shall be entitled to invoice the Buyer for the price of the Goods on or at any time after ETDYN has notified the
Buyer that the Goods are ready for collection or ETDYN has tendered delivery of the Goods.
8. WARRANTIES AND EXEMPTIONS
If under proper use the goods develop any defect during the warranty period due to defective articles or materials supplied ETDYN shall at its own expense and option
replace or repair such goods as are defective so as to remedy the defects except where such defects are attributable to accident, fair wear and tear, or any act omission
or neglect of the buyer or of its agents. The buyer must give ETDYN notice of any alleged defects as soon as it becomes apparent, and shall (unless otherwise instructed
by ETDYN) retain the goods at the buyer’s premises for inspection by ETDYN and give ETDYN adequate facilities to investigate the complaint at the buyer’s premises.
The “warranty period” shall mean the period specified in ETDYN’s order acknowledgement as the warranty period and if no such period is specified, then a period of 12
months from the date of delivery of the goods.
Except as expressly stated above there shall be excluded from the contract any warranty, condition or statement, express or implied, statutory or otherwise, as to
satisfactory quality, and/or fitness of the goods for any particular purpose.
ETDYN shall not be liable to the buyer in contract tort (including without limitation negligence) and/or breach of statutory duty for any loss or damage which the buyer may
suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the contract by ETDYN its servants or agents, [in a sum which is
greater than the contract price].
ETDYN shall not be liable to the buyer in contract tort (including without limitation negligence) and/or breach of statutory duty for any loss of profits loss of goodwill loss of
contracts and/or any indirect or consequential (including economic) loss of any kind including loss of profits and/or loss of production which the buyer may suffer by
reason of any act, omission, neglect or default (including negligence) in the performance of the contract by ETDYN, its servants or agents.
Provided that nothing in this condition shall operate so as to exclude ETDYN's non-excludable liability in respect of death or personal injury caused by the negligence of
ETDYN its servants or agents; to affect the statutory rights of the buyer where goods are sold to a buyer dealing as a consumer within the meaning of unfair contract
terms act; or to exclude the application of section 12 of the sale of goods act 1979 or to exclude liability for fraudulent misrepresentation.
ETDYN reserves the right not to accept goods for credit or replacement from the buyer that are not accompanied and clearly marked with a returned materials
authorisation (RMA) number that has been previously agreed with and issued by ETDYN. An RMA number shall remain open and valid for 30 days from date of issue by
ETDYN. If ETDYN have failed to receive the goods to which the RMA number relate within this period then ETDYN reserve the right to cancel the RMA. The risk and the
property in the goods remain with the buyer unless otherwise notified by ETDYN. ETDYN will not accept returned goods that clearly show signs of physical damage to
external packaging where it is possible that damage to the goods may have occurred as a result. The buyer shall be responsible for the carriage costs of the returned
goods unless otherwise agreed in writing by ETDYN.
Whilst we will, wherever possible, use the particular components or design detailed and identified within a provided specification, the final choice will remain with ETDYN
to ensure that the specification meets the performance detailed.
9. INSOLVENCY AND DEFAULT
Without prejudice to any rights and remedies available to it, ETDYN shall be entitled, forthwith on written notice to the Buyer either to terminate the Contract in whole or in
part and/or any other contract with the Buyer or to withhold performance of all or any of its obligations under the Contract and/or any other contract with the Buyer (and on
the giving of such notice all monies outstanding from the Buyer to ETDYN shall become immediately due and payable) if:-any sum owing to ETDYN from the Buyer on
any account whatsoever shall be unpaid after the due date for payment (in which event
ETDYN shall have a general lien for any such sum on all and any property of the Buyer in its possession); or
the Buyer shall commit or be subject to any Act of Insolvency; or
the Buyer shall commit any breach of any contract (including without limitation the Contract) with ETDYN.
In the event of a suspension of performance ETDYN shall be entitled, as a condition of resuming performance, to require pre-payment, or such security as it may require.
10. EXPORT TERMS
Any term or expression which is defined in the provisions of Incoterms 2000 (or any subsequent revision thereof) shall import the respective obligations of Buyer and
Seller into these Conditions, but in the event of conflict these Conditions shall prevail.
Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 10 shall (subject to any special terms agreed in writing between ETDYN
and the Buyer) apply not withstanding any other provision of these Conditions.
Unless otherwise agreed in writing between ETDYN and the Buyer, the Goods shall be delivered Ex-Works and ETDYN shall be under no obligation to give notice under
section 32(3) of the Sale of Goods Act 1979.
The Buyer shall be responsible for arranging for testing and inspection of the Goods at ETDYN's premises before shipment. ETDYN shall have no liability for any claim in
respect of any defect in the Goods which would be apparent on testing or inspection and which is made after shipment, or in respect of any damage during transit.
11. CANCELLATION
The Contract may be cancelled in whole or in part by the Buyer only with ETDYN’s written consent and upon the condition that the Buyer shall indemnify ETDYN in full
against all loss, damages, costs expenses and other liabilities awarded against or incurred by ETDYN as a result of or in connection with the cancellation
12. GENERAL
It shall be the responsibility of the Buyer to ensure that all requirements applicable to the Contract, whether statutory, regulatory, municipal and/or otherwise howsoever,
(including without limitation any relating to the importation or use of the Goods in the country of destination and for the payment of duties thereon) are duly complied with.
It shall be a condition precedent to the performance by ETDYN of its obligations under the Contract that all necessary licences, permits and consents shall have been
obtained by the Buyer.
Neither party shall have any liability for any failure to perform or for any delay in the performance (other than as to payment) of any of its obligations under the Contract
caused by any factor beyond its reasonable control.
No failure or delay on the part of ETDYN to exercise any of its rights under the Contract shall operate as a waiver of nor shall any waiver by ETDYN of any breach by the
Buyer of any of its obligations under the Contract affect the rights of ETDYN in the event of any further or continuing breach.
The Contract is personal to the Buyer, who shall not assign or in any way part with the benefit without ETDYN’s prior written consent.
Each and every obligation contained in these Conditions shall be treated as a separate obligation and shall be severally enforceable as such notwithstanding the nonenforceability
of any other such obligation.
The Conditions and the Contract shall not create or evidence, or be deemed to create or evidence, any agency or partnership between ETDYN on the one hand and the
Buyer or any third party on the other.
Any notice required to be given in writing under the Contract shall be given, where possible, by facsimile transmission and otherwise by first class post addressed to the
registered office of the party for which it is intended, or to such other address as may be notified in writing in accordance herewith for the purpose, and shall be deemed to
have been received, in the case of a facsimile transmission, upon transmission and, in the case of a letter, forty-eight hours after posting. In proving service by letter, it
shall be sufficient to show that the envelope containing the notice was properly addressed and stamped and duly posted.
The Contract shall be governed by English Law.
The parties irrevocably submit to the exclusive jurisdiction of the English Courts, save in the case of a Buyer who has no assets within the jurisdiction of the English
Courts and who is established in a country which will not enforce the judgement of the English Courts. In those circumstances ETDYN may if it chooses refer any
disputes arising out of the Contract to arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce, such arbitration to take place
in London.
