Terms and Conditions.
- 1.1 In these Conditions:
‘Buyer’ means the person who accepts a quotation issued by the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller. ‘Goods’ means the goods (including any installment of the goods or any part for them) which the Seller is to supply in accordance with these Conditions. ‘Seller’ means Alexander Technologies Europe Limited, a company registered in England and Wales with company number 1816700 and having its registered office at 2 Doxford Drive, South West Industrial Estate, Peterlee, County Durham, SR8 2RL, England and its successors in title and assignees. ‘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. ‘Force Majeure Event’ means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors. Subject to clause 13.3, ‘Writing’ includes telex, cable, facsimile transmission, electronic mail and any comparable means of communication.
- 1.2 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 from time to time.
- 1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the sale
- 2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or in accordance with any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
- 2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
- 2.3 In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any representations made by an employee of the Seller which are not confirmed in Writing by an authorised representative of the Seller.
- 2.4 Any typographical, clerical or other error or omission in any sales literature, quotation, acceptance of offer, 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 and specifications
- 3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller’s authorised representative.
- 3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within sufficient time to enable the Seller to perform the Contract in accordance with its terms.
- 3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
- 3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
- 3.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory UK requirements or, where the Goods are supplied to the Seller’s specification, which do not materially affect their quality or performance.
- 3.6 Other than for reason of a price increase in accordance with clause 4.2.1, no order which has been accepted by the Seller, or quotation which has been accepted by the Buyer, may be cancelled by the Buyer nor any Goods returned except with the prior agreement in Writing of the Seller and provided that the Buyer shall indemnify the Seller in full against all loss (including loss of profit and other financial losses), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of
such cancellation or return.
4. Price of the goods
- 4.1 The price of the Goods shall be the Seller’s quoted price. All prices quoted are valid for 30 days only.
- 4.2 The Seller reserves the right to increase the price of the Goods at any time to reflect:
- 4.2.1 any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture); and/or
- 4.2.2 Any change in delivery dates, quantities or specifications for the Goods 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.
- 4.3 Except as otherwise stated under the terms of any quotation of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are for Goods delivered Ex Works Seller’s premises (© Incoterms 2022), and, where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport and insurance.
- 4.4 The price is exclusive of any applicable value added tax, which the Buyer shall pay to the Seller in addition.
- 4.5 Any credit given by the Seller to the Buyer is given entirely at the Seller’s discretion and shallbe subject to such terms as the Seller shall from time to time impose. In the event that the Buyer exceeds an agreed credit limit, the Seller shall immediately be entitled to withdraw the Buyer’s credit and require the Buyer to immediately pay all sums outstanding under the Contract.
5. Terms of payment Delivery
- 5.1 The Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after the Seller has notified the Buyer that the Goods are ready for collection or delivery of the Goods by the Seller pursuant to clause 6.1 or attempted delivery by the Seller if the Buyer fails to take delivery of the Goods.
- 5.2 Subject to clause 11.5, the Buyer shall pay the price of the Goods within 30 days from the date of the invoice or at such other time as the Seller may require having regard to the Buyer’s credit worthiness from time to time and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place. 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 for any reason whatever. Payment for the Goods shall be made in full and cleared funds to the Seller’s bank account
notified to the Buyer. Time for payment shall be of the essence of the Contract. Receipts for
payment will be issued only upon request.
- 5.3 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 to:
- 5.3.1 Terminate the Contract or suspend any further deliveries to the Buyer;
- 5.3.2 Appropriate any payment made by the Buyer to such of the Goods (or goods 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
- 5.3.3 Claim interest and/or compensation for reasonable debt recovery costs under the Late Payment of Commercial Debts (Interest) Act 1998 as amended.
- 6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed in Writing by the Seller, by the Seller delivering the Goods to that place.
- 6.2 Delivery of the Goods shall be completed on the completion of loading of the Goods at the Seller’s premises or, if some other place for delivery is agreed in Writing by the Seller, on the Goods arrival at the agreed delivery location.
- 6.3 Any dates quoted for delivery of the Goods are approximate only and time for delivery shall not be of the essence. The Seller shall be entitled to deliver the Goods in advance of the quoted delivery date upon giving reasonable notice in Writing to the Buyer.
- 6.4 Where the Goods are to be delivered in installments, each delivery shall constitute a separate Contract. Any delay or and failure by the Seller to deliver any one or more of the installments in accordance with these Conditions or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to cancel any other installment.
- 6.5 If the Seller fails to deliver the Goods the Seller’s liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Seller 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 Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
- 6.6 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller shall:
- 6.6.1 store the Goods until actual delivery takes place and charge the Buyer for all related costs and expenses of storage (including insurance); and
- 6.6.2 if ten (10) days after the day on which the Seller notified the Buyer that the Goods were ready for delivery the Buyer has not taken delivery of them, the Seller may resell or otherwise dispose of part or all of the Goods and (after deducting all reasonable storage and selling expenses) account to the Buyer for any excess over the price under the Contract or charge the Buyer for any shortfall below the price of the Goods under the Contract.
7. Risk and title Warranties
- 7.1 Risk of damage to or loss of the Goods shall pass to the Buyer on completion of delivery pursuant to clause 6.2.
- 7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, title to the Goods shall not pass to the Buyer until the Seller has received in cashor cleared funds payment in full of the price of:
- 7.2.1 the Goods; and
- 7.2.2 All other sums which are or which become due to the Seller from the Buyer on any account.
- 7.3 Until such time as title to the Goods passes to the Buyer, the Buyer shall:
- 7.3.1 Hold the Goods as the Seller’s fiduciary agent and bailee;
- 7.3.2 Store the Goods separate from those of the Buyer and third parties so that they remain identifiable as the Seller’s property;
- 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 Not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
- 7.3.5 Notify the Seller immediately if it becomes subject to any of the events listed in clause 10.1; and
- 7.3.6 Give the Seller such information relating to the Goods as the Seller may require from time to time.
- 7.4 Subject to clause 7.5, the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business before the Seller receives payment for the Goods, but shall do so as a principal and not as the Seller’s agent and title to the Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs. The Buyer 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.
- 7.5 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 10.1, then, without limiting any other right or remedy the Seller may have:
- 7.5.1 The Buyer’s right to resell the Goods or use them in the ordinary course of its business shall cease immediately; and
- 7.5.2 the Seller may at any time require the Buyer to deliver up to the Seller all the Goods in its possession which have not been resold, or irrevocably incorporated into another product and, if the Buyer fails to do so forthwith, to enter any premises of the Buyer or any third party where the Goods are stored in order to repossess them.
- 7.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
- 8.1 Subject to clause 8.3, the Seller warrants that the Goods will correspond with their specification and will be free from defects in design, material and workmanship at the time of delivery and for a period indicated as follows:
- 8.1.1 All products manufactured and supplied by Seller have a warranty period of twelve months from date of shipment.
- 8.2 Subject to clause 8.3, if:
- 8.2.1 the Buyer gives notice in Writing to the Seller within seven (7) days from the date of delivery or (where failure was not apparent on reasonable inspection) within a reasonable time after discovery during the warranty period that some or all of the Goods do not comply with the warranty set out in clause 8.1;
- 8.2.2 The Seller is given a reasonable opportunity of examining such Goods; and
- 8.2.3 The Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of Business at the Buyer’s cost, The Seller shall, at its option, repair or replace the defective Goods or refund the price of the defective Goods in full.
- 8.3 The Seller shall not be liable for the Goods’ failure to comply with the corresponding warranty set out in clause 8.1.1, if:
- 8.3.1 The defect in the Goods arises from any drawing, design or specification supplied by the Buyer;
- 8.3.2 the defect arises from fair wear and tear, willful damage, negligence, abnormal storage or working conditions, failure to follow the Seller’s instructions (whether oral or in Writing), misuse or alteration or repair of the Goods without the Seller’s approval;
- 8.3.3 The Buyer makes any further use of the Goods after giving notice in Writing;
- 8.3.4 The Goods differ from their description or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
- 8.3.5 The total price for the Goods has not been paid by the due date for payment.
- 8.4 The warranty set out in clause 8.1 does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any warranty or guarantee as is given by the manufacturer to the Seller.
- 8.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are excluded from the Contract to the fullest extent permitted by law.
9. Limitation of liability
- 9.1 Nothing in these Conditions shall limit or exclude the Seller’s liability for:
- 9.1.1 Death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
- 9.1.2 Fraud or fraudulent misrepresentation;
- 9.1.3 Breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
- 9.1.4 Any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
- 9.2 Subject to clause 9.1:
- 9.2.1 The Seller shall under no circumstances whatever be liable to the Buyer, 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
- 9.2.2 the Seller’s total liability to the Buyer 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 £2 million.
- 10.1 If it becomes apparent that the Buyer has become insolvent or has had a receiver, administrator or administrative receiver appointed or applied for or has called a meeting of creditors or resolved to go into liquidation (except for bona fide amalgamation or reconstruction while solvent) or an application is made to appoint a provisional liquidator of the Buyer or for an administration order or notice of intention to appoint an administrator is given or a proposal is made for a voluntary arrangement or any other composition, scheme or arrangement with or assignment for the benefit of any of the Buyer’s creditors, or any event analogous to any of the foregoing occurs in any jurisdiction other than England and Wales in respect of the Buyer or if the Buyer ceases or threatens to cease to carry on business, the Seller may terminate the Contract with immediate effect by giving notice in Writing to the Buyer.
- 10.2 Without limiting its other rights or remedies, the Seller may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Seller if the Supplier reasonably believes that the Buyer is about to become subject to any of the events listed in clause 10.1,
- 11.1 Where the Goods are supplied for export from the United Kingdom, the Buyer shall be responsible for complying with any legislation or regulations governing the exportation and importation of the Goods into the country of destination and for the payment of any duties thereon.
- 11.4 The Buyer shall be responsible for arranging and pay for the costs of any requested testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would have been apparent on inspection or which is made in respect of any damage during transit.
- 11.5 The Seller shall at its discretion be entitled to require the Buyer to make payment of all amounts due to the Seller by irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by a bank acceptable to the Seller. All costs charges and expenses of confirmation shall be borne by the Buyer.
12. Force majeure
- Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event.
- 13.1 The Seller may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Seller.
- 13.2 Any notice required or permitted to be given by either party to the other under these Conditions shall be a notice in Writing addressed to that other party at its principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Any notice hand delivered or sent by any instantaneous method of transmission shall be deemed served immediately and any notice sent by post to a UK address shall be deemed served three days after posting. Any notice delivered by commercial courier shall be deemed served on the date and at the time that the courier’s delivery receipt is signed.
- 13.3 Clause 13.2 shall not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of clause 13.2, “notice in Writing” shall not include e-mail.
- 13.4 No failure or delay by the Seller 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.
- 13.5 If any provision of these Conditions is held by any competent authority to be invalid, illegal or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby. In such an event the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable and, to the greatest extent possible, achieves the intended commercial result of the original provision.
- 13.6 A person who is not a party to the Contract shall not have any rights to enforce its terms.
- 13.7 The Contract shall be governed by the laws of England and Wales and the Seller and the Buyer hereby agree to submit to the exclusive jurisdiction of the Courts of England and Wales.