1. The Seller
‘the seller’ refers to Telemisis Limited, or to any successor, assignee or subsidiary of Telemisis Limited by which the goods are sold.
2. The Contract
2.1. Any quotation by the seller is given without obligation and merely represents an invitation to the Buyer to make an offer to buy. No order placed by the Buyer on the basis of such quotation or otherwise shall impose any obligation to deliver on the Seller.
2.2. The quantity and description of the Goods shall be as set out in the Seller’s quotation
2.3. A contract is deemed to be entered into as soon as the order has been duly accepted in writing or by electronic data transfer using the Seller’s letterhead ‘Confirmation of Order’ or by verbal acceptance. Any objections to the Seller’s Confirmation of Order shall be presented immediately and no later than five (5) days from the Confirmation of Order.
2.4. Where goods are ordered on a forward order system the following shall apply:-
2.4.1. Goods shall be ordered via a purchase order form
2.4.2. All purchase orders must contain a delivery date, with the delivery date not exceeding 6 months from the date of the purchase order
2.4.3. The Buyer shall provide a Schedule setting out the Goods it requires for Delivery for the forthcoming month. The Buyer shall be bound to accept delivery of the goods referred to in the first 2 weeks of the Schedule, and the Seller shall be entitled to deliver those Goods identified and present an invoice for payment upon delivery of the Goods.
2.4.4. Regardless of the contents of any Schedule presented by the Buyer, the Seller shall deliver all remaining Goods not already delivered on the Delivery Date identified on the Purchase Order or, in default of a delivery date, on the 6 month anniversary of the Purchase Order. The Buyer shall be bound to accept delivery of those Goods delivered pursuant to this clause.
2.5. Acceptance of delivery of any goods is deemed to be acceptance of the conditions of sale.
3.1. Time of delivery
3.1.1. The Seller shall make every reasonable effort to perform delivery on the dates required by the Buyer but such a date or dates are neither guaranteed nor deemed to be the essence of the Contract. Delivery made later than on the date or dates provided in the Contract document shall not constitute a breach of the Contract. The Seller shall not be liable for any costs, expense, injury or damage caused through delay in delivery and the Buyer shall not be entitled to withdrawal from the Contract nor to any remedies on account of delayed delivery unless otherwise expressly agreed in writing, in which case the Seller, to the exclusion of any remedies, shall pay liquidated damages as agreed.
Where the goods are to be manufactured according to information and technical documentation provided by the Buyer, the Buyer shall deliver such materials to the Seller’s works at the Buyer’s own risk and expense at the date stated in the Confirmation of order. If no such time has been stated all particulars shall be submitted immediately. Should the information or documents not be at the Seller’s disposal at the agreed date or, should the Buyer fail to make the advance payment, if so agreed in the Confirmation of Order, at the agreed date, the Seller shall not be liable for delay in delivery nor be obliged to pay any liquidated damages or other remedy even though the Seller and the Buyer have agreed on liquidated damages or other remedy in writing.
3.2. Terms of delivery
3.2.1. The Terms of delivery are specified in the Confirmation of order. Unless otherwise agreed in writing, the Contract is understood to involve delivery Ex Works from the named site of the Seller.
The Seller shall notify the Buyer when the goods are ready for collection at the agreed site and the Buyer shall collect the goods without delay. The Buyer failing to collect the goods, the Seller may despatch or store the goods as it sees fit at the expense of the Buyer. The Seller’s obligation to deliver shall thereupon be considered as fulfilled, whereas the risk passes to the buyer, involving the obligation to pay the Contract price.
Notwithstanding any other condition contained herein the Seller may at his own option deliver and invoice the goods by instalments, in which case each delivery shall be treated as a separate contract.
When the delivery of the goods is defined in the Confirmation of Order as being the responsibility of the Seller, the Seller shall be entitled, after due notice to the Buyer, to deliver all or part of the goods up to three weeks in advance of the time of delivery. Such early shipments, however, are invoiced on the basis of the agreed time of delivery.
No claim filed by the Buyer concerning previously delivered goods shall relieve the Buyer from the obligation to take further deliveries of goods ordered.
4.1. Payment in full
4.1.1. The Contract price and the terms of payment are specified in the Confirmation of Order. Time for payment shall be of the essence. Unless otherwise agreed in writing, the Buyer shall pay the price in full within 30 days of the date of invoice. The payment shall be deemed as being effectively made only when the seller’s account has been irrevocably credited with the full amount in the currency specified on the invoice. The Buyer shall not be entitled to withhold any payment or partial payment of any sum alleged to be due to the Buyer by way of set-off or counterclaim
4.2. Remedies for defaults in making payment
should the Buyer be in default in making any payment due under the Contract, the following shall apply:
4.2.1. upon having given due notice to the Buyer, the Seller is entitled to withdraw from any other contracts with the Buyer or to suspend delivery of any goods thereunder or to make further delivery on such specific conditions as the Seller at his reasonable discretion may deem fit.
4.2.2. all the invoices that have not fallen due for payment become payable upon due notice by the Seller to the Buyer.
4.2.3. interest on overdue invoices shall accrue from the date when payment becomes due from day to day until the date of payment at a rate of 8% above the Bank of England base rate from time to time in force and shall accrue at such a rate after any judgment.
4.2.4. the Seller shall be entitled to payment for administration charges pursuant to the Late Payment of Commercial Debt (Interest) Act 1998
4.3. Anticipatory breach
4.3.1. The Seller may suspend the performance of his obligations if, after the conclusion of the Contract, it becomes apparent that the Buyer will fail to perform a substantial part of his obligations as a result of, but not limited to, a serious deficiency in his ability to perform or in his creditworthiness, or concluding from his conduct in preparing to perform or in performing the Contract. If the Seller has dispatched the goods before such an anticipatory breach becomes evident, the Seller may prevent the handing over of the goods to the Buyer even if the Buyer holds documents entitling him to receipt of the goods. Whenever an anticipatory breach as described in the first sentence becomes evident, the seller also has the right to void the Contract.
4.4. Set-off and counterclaim
The Buyer may not withhold payment of any invoice or other amount due to the Seller by reason of any right of set off or counterclaim which the Buyer may have or allege to have or for any reason whatever.
5. Retention of Title
5.1. Risk shall pass on delivery of the Goods.
5.2. Notwithstanding delivery to the buyer, the Seller shall be legally and beneficially entitled to the ownership of the goods until payment of all debts owed by the buyer to the company. Title will not pass to the Customer until all such payments have been received by the Seller. Until such payment, and subject to the following provisions, the buyer holds the goods as Bailee of the Seller and owes to the Seller the normal fiduciary obligations of a Bailee by way of custody in respect of the goods. The Buyer will not be entitled to sell the Goods or to convert or incorporate the Goods into any other Goods without the express written consent of the Seller, and the Buyer must store the Goods separately and clearly marked as the Seller’s property.
5.3. The Buyer shall be responsible for the costs and expenses incurred by the Seller in locating, repossessing, recovering or restoring the Goods.
5.4. The Buyer hereby grants to the Seller, its Agents and employees and irrevocable licence to enter onto any premises where the Goods are stored or sited in order to repossess them or inspect them at any time. The Buyer shall ensure that the owner of the premises where the Goods are located permits the Seller to have access to the premises to inspect and test and remove the Goods and that the owner acknowledges that it has no ownership or other rights to the Goods.
5.5. The Seller maintains the right to remove any products supplied from any assemblies or equipment to which the Buyer may have installed the supplied products as long as no damage to the assemblies or equipment is caused by their removal, rendering the assemblies or equipment not to function does not constitute damage. The Seller shall reserve the right to charge for this removal process.
5.6. If any payment is overdue in whole or in part, or if an execution is levied upon the property or assets of the Buyer or if the Buyer becomes unable to meet its obligations as they fall due, the Seller may enter the premises of the Buyer for the purpose of recovering or reselling all or part of the goods delivered to such an extent as permitted by applicable law.
6.1. The weight or quantity delivered is subject to a tolerance of plus or minus ten (10) per cent of the weight or quantity stated in the Confirmation of Order and the amount payable by the buyer shall be calculated on the basis of the Contract rates.
6.2. The weight or quantity of the goods that is marked on the Seller’s despatch note shall be deemed final and binding on the Buyer unless the Buyer has given due notice of any discrepancy in weight or quantity within five (5) days after receipt of the goods and has thereafter reserved for the Seller a reasonable opportunity to witness the verification of the weight or quantity of the goods before they are used, processed or sold.
6.3. Any discrepancy in the weight or quantity of the goods delivered to the Buyer that exceeds the tolerances set forth in the first paragraph of this clause shall not as such constitute a breach of the Contract nor entitle the Buyer to reject the delivered goods. The Buyer, to the exclusion of any other remedies, shall be entitled to reimbursement supplement at the option of the Seller.
The Buyer shall be deemed to have accepted the goods delivered with respect to quality, condition, dimensions, identification and any other specified feature that would have been apparent by careful inspection or reasonable testing, unless the Buyer: a) within five (5) days after receipt of the goods, presents a written claim specifying the alleged non-conformity in quality or condition and b) thereafter reserves for the Seller a reasonable opportunity to inspect the goods.
An actual non-conformity in the quality or condition of the goods that was not apparent (and therefore escaped detection) upon careful inspection and reasonable testing must be reported in writing to the Seller immediately after having been discovered by the Buyer and in the event no later than 1 month after receipt of the goods. The notification shall describe in detail the alleged non-conformity and, as a precondition for any obligation of the Seller with respect to such alleged non-conformity, the Buyer shall provide for the Seller an opportunity to inspect or test the goods merely on the grounds that the goods have been transformed and thereby incorporated in the products of a third party or are in the possession of a third party at any location.
Goods sold as non-prime or goods agreed by the Buyer and the Seller to be non-prime are sold in their actual state and condition, without warranty and with flaws and defects whatsoever. Any statement specification, or other information provided by the Seller in respect of such goods is given in good faith and the Seller accepts no responsibility for the accuracy of such statement specification or other information. The Seller shall under no circumstances be liable towards the Buyer or a third party on account of the quality or condition of such goods.
7.3. Suitability of the goods
The Seller undertakes no liability for the goods supplied to be fit for purpose, but the Buyer having greater knowledge of his own requirements, shall entirely rely on his own skill and judgement in evaluating the suitability of the goods for his purposes before the goods are used for or incorporated in any products or applications.
Any warranty for merchantability or fitness or suitability for a particular use or purpose that may be implied by statute, custom of trade, or otherwise, is hereby excluded.
The Seller undertakes no liability for the applicability of the Buyer’s designs or specifications for the Buyer’s purposes.
7.4. Remedies for defects
If the Buyer has complied with the requirements of sub clause 7.1 and subject to sub clauses 7.2 and 7.3, the Buyer has demonstrated that the goods or any part thereof are non-conforming in quality or quantity or condition or otherwise for reasons attributable to the Seller and the Seller and the Buyer failing to agree that the Buyer should accept the goods at an agreed value, the Seller, to the exclusion of any other remedies, may at his option either:
7.4.1. remedy the non-conformity as soon as it is reasonably practicable, or
7.4.2. provide replacement goods at the original place of delivery as soon as it is reasonably practicable, or
7.4.3. reimburse the Buyer for the price of the goods and for any reasonable transport costs incurred by the Buyer in carrying the non-conforming goods from the place of the original delivery of such goods to a location specified by the Seller in writing.
In cases of 7.4.1 and 7.4.3 above, the defective goods remain the property of the Seller.
8.1. The Buyer shall be entitled to remedies only as stated in the Contract, these remedies being to the exclusion of any other remedies.
8.2. The Seller not be liable for any indirect incidental or consequential damages such as, but not limited to, loss of use, loss of production or loss of anticipated profit or for any other indirect loss or damage arising out of or in connection with the Contract.
8.3. The Seller shall be liable for personal injury only if it is proved that such injury was caused by gross negligence by the Seller.
8.4. The Seller shall not be liable for any damage to property that may be caused by the goods while in the possession of the Buyer or a third party. Nor shall the Seller be liable for any damage to products manufactured by the Buyer or a third party, or to products in which the goods sold by the Seller are incorporated.
8.5. If the Seller incurs liability towards third party for damage to property as described in the preceding paragraph, the Buyer shall indemnify defend and hold the Seller harmless.
8.6. The overall liability of the Seller for any and all claims arising out of or in connection with the Contract or the goods delivered shall not exceed the Contract price of the goods delivered.
9.1. If the Buyer cancels, extends or delays or purports to cancel, extend or delay the contract or part thereof, or fails to take delivery of any Goods at the time agreed (if any) the Buyer will be liable (without prejudice to any other rights of the Seller to claim damages) to indemnify and keep indemnified the Seller against any resulting loss, damage or expense incurred by the Seller in connection with the supply or non-supply of the Goods.
9.2. If the Seller is unable (whether temporarily or permanently) to procure any services or goods necessary to enable it to supply the Goods or if the supply of Goods is prevented or hindered by reason of any cause beyond the Seller’s control, including but not limited to a force majeure as referred to in clause 10, the Seller may cancel or suspend performance of the contract by notice in writing to the Buyer so far as it relates to Goods not then supplied and such cancellation or suspension shall not give rise to any claims by the Buyer provided that the Buyer shall remain liable to pay for Goods supplied prior to the date of such cancellation or suspension.
10. Force majeure
10.1. Save for the Buyer’s obligation of payment under clause 4 neither party shall be liable for any default due to any act of God, war, civil disturbance, malicious damage, strike, lockout, industrial action, fire, flood, drought, extreme weather conditions, compliance with any law or governmental order, rule, regulation, direction or other circumstance beyond the reasonable control of either party (‘Force Majeure Event’).
10.2. Each party shall give notice forthwith to the other upon becoming aware of a Force Majeure Event, the notice to specify details of the circumstances giving rise to the Force Majeure Event.
11. Third Party Rights
The provisions of the Contracts (Rights of Third Parties Act) 1999 shall not apply to this contract and a person who is not a party to this contract shall have no right under that Act to enforce any term of the contract.
Any notice to be given under the Contract shall be delivered by pre-paid first class mail, telefax or electronic data transfer to the address of the other party as identified overleaf, failing which Notices shall be served on the registered office of the parties. Notices given by any other means shall be considered ineffective unless confirmed by letter or fax.
The failure of the Seller at any time to require from the Buyer the performance of any provision of the Contract shall in no way affect his full right to require such performance at any time thereafter. Nor shall any such failure by the Seller to require performance on any occasion be taken to be waiver of any claims concerning succeeding breaches of such provision or waiver of the provision itself.
If one or more of the provisions or conditions of the Contract or any part thereof are or become void unenforceable or otherwise invalid, the remainder of the Contract that incorporates such a provision or condition shall continue to be fully binding, including the remainder of any partially valid condition or provision.
15. Applicable Law
This contract is subject to the law of England and Wales and the parties submit to the exclusive jurisdiction of the English Courts
16. Modifications and Amendments
Any modifications or amendments to the conditions of the Contract must be agreed in writing between the parties. Modifications of the technical documents or specifications as well as the effect on the Contract price and delivery times must be agreed in writing between the parties.
17. Entirety of Agreement
17.1. This Agreement constitutes the entire agreement and undertaking between the Seller and the Customer with regard to the subject matter of this Agreement, and supersedes all prior discussions, agreements and understandings. The parties further agree that no statements or representations made by either party have been relied upon by the other party in entering into the Agreement. This Agreement may be amended only by written agreement signed on behalf of the Seller and the Customer by a Director thereof or by a person who has been given written authority to sign by a Director thereof.
17.2. The Customer shall not assign, transfer or sub-contract any of its rights or obligations arising under, by reason of, or in connection with this Agreement, without the prior written consent of the Seller.