Terms & Conditions of Sale
Thermal Process Equipment (UK) Limited
1. Definitions
1.1. “Seller” shall mean Thermal Process Equipment (UK) Limited, whose trading office is situated at Unit 9 Brockwell Court, Low Willington Ind Estate, Durham DL15 0UT.
1.2. “Buyer” shall mean the person, firm, company, or other corporation who places an order with the Seller or otherwise contracts with the Seller for any of the Goods or Services.
1.3. “Goods” shall mean all or any of the goods or materials which from time to time the Seller contracts to supply.
1.4. “Services” shall mean all or any of the services which from time to time the Seller contracts to supply.
2. Basis of Contract
2.1. These conditions shall apply to all contracts, whether written, oral, or implied, for the supply of Goods or Services.
2.2. Any conditions of purchase or other terms provided by the Buyer shall be of no effect whatsoever, nor shall any variation or alteration to these conditions be of any effect unless specifically negotiated and made in writing and signed by a duly authorised signatory of the Seller.
2.3. The placing of an order by the Buyer shall create no binding contract unless and until the Seller’s written acknowledgement of the order shall have been posted or delivered, which acknowledgement will be deemed to repeat these conditions. Alternatively, in the event that no such acknowledgement is sent, at the time of acceptance of any order for the Goods or Services by the Seller, a binding contract will be created subject to these conditions.
3. Quotations
Any quotation in whatever form provided by the Seller is given subject to these conditions as an invitation to treat and does not constitute an offer to sell. The validity of any such quotation shall expire 30 days after the date of its issue.
4. Prices
4.1. Subject to anything to the contrary contained in any quotation issued by the Seller, prices for the Goods or Services are, unless otherwise stated, exclusive of carriage, handling, packaging, any insurance charges and of Value Added Tax and any other similar tax.
4.2. The Buyer shall have no right of set-off whether statutory or otherwise.
4.3. The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods or Services to reflect any increase in the cost to the Seller which is due to any actions or instructions on the part of the Buyer or any other factor beyond the Seller’s control.
4.4. Unless otherwise expressly stated in writing by the Seller, all prices payable must be settled in pounds sterling.
5. Designs, Drawings and Specifications
5.1. If the Goods are manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification or requirement submitted by the Buyer and agreed by the Seller, the Buyer shall indemnify the Seller in respect of any claim against the Seller directly attributable to or caused by any such specification or requirement.
5.2. The Buyer warrants that any instructions, plans, designs, or drawings furnished or given by it shall not be such as will cause the Seller to infringe any patents, copyright, registered design, design right, right of confidence, trademark, or any other intellectual property right in execution of the Buyer’s order and agrees to indemnify the Seller against all claims, costs or other expenses incurred by the Seller in respect thereof.
6. Variation and Cancellation
The Seller shall be under no obligation whatsoever to accept any variation or cancellation of an order once accepted. However, if the Seller at its complete discretion agrees to accept any such variation or cancellation it may levy such charges as it, in its absolute discretion, sees fit.
7. Payment and Default by Buyer
7.1. The Seller reserves the right at any time at its discretion to demand security for payment before commencing and/or continuing with contract or delivering the Goods or goods upon which Services have been rendered.
7.2. Subject to clause 7.3 and 7.4 and unless otherwise agreed in writing by the Seller, the Buyer shall pay the Seller in full for the Goods or Services as the case may be on or before 30 days from when delivery takes place. Time for payment shall be of the essence of the contract.
7.3. In the event that the Buyer fails to make payment by the due date or otherwise commits a breach of these conditions, the Seller may in its absolute discretion and without prejudice to any other rights which it may have:
(a) suspend all future deliveries or supplies to the Buyer under the contract in question or under any other contracts, and/or terminate all or any part of such contract(s) without liability upon its part;
(b) require payment in advance for any future deliveries;
(c) in the case of non-payment on or before the due date or on demand, charge interest on the amount due on a day-to-day basis at the rate of two (2) per cent per annum above the base rate for the time being of Lloyds Bank Plc, from the time of delivery or date of invoice, whichever is the earlier until the date of actual payment, whether before or after judgement.
7.4. Without prejudice to any other rights the Seller may have by virtue of paragraph 7.3, the Seller may demand immediate payment of all sums whether or not due or re-take possession of the Goods in the event that:
(a) the Buyer makes any voluntary arrangement 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 purposes of amalgamation or reconstruction;
(b) an encumbrancer takes possession of, or a receiver is appointed over, any of the properties or assets of the Buyer;
(c) the Buyer ceases, or threatens to cease, to carry on business; 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.
8. Delivery and Collection
8.1. Subject to the provisions of clauses 4.1 and 10, delivery of Goods or goods upon which Services have been rendered will be made to the Buyer’s premises unless the Seller shall stipulate otherwise.
8.2. When delivery or collection takes place at the Buyer’s premises it will be the Buyer’s responsibility to ensure delivery or collection can take place when specified or otherwise agreed. The Buyer shall indemnify the Seller against any loss or expense incurred as a result of a breach of these obligations.
8.3. Although given in good faith, delivery times for the supply of the Goods or Services by the Seller in its quotation or otherwise are intended as estimates only and are not therefore to be treated as being of the essence of the contract or binding on the Seller.
8.4. The right to deliver the Goods or the goods upon which the Services have been rendered in part is expressly reserved by the Seller and these conditions shall apply to any such part or parts mutatis mutandis.
8.5. In the event that the Buyer is responsible for collecting the Goods or the goods upon which Services have been rendered and such collection does not occur within seven days of the Buyer having been informed that such goods are ready for collection, the Seller may charge the Buyer for the Seller’s reasonable costs of storage.
9. Returns
Any goods agreed by the Company as acceptable for return could be subject to a restocking fee or handling charge of 15% of the net invoiced price, together with the reimbursement of any expense incurred by the Company as a consequence of the return of said goods to the Company’s stock.
10. Risk
The liability for Goods or the goods upon which Services have been rendered shall pass to the Buyer:
(a) in the case of delivery at the Seller’s premises, at the time when the Buyer or its agent collects the Goods immediately after loading; or
(b) in the case of delivery otherwise than at the Seller’s premises, at the time immediately prior to the commencement of unloading or, if the Buyer wrongfully fails to take delivery, at the time when the Seller or its agent has tendered their delivery.
11. Title of Goods
11.1. The property and ownership of the Goods shall remain with the Seller and the Buyer shall hold the Goods as fiduciary agent and bailee for the Seller until such time as the price of all Goods and/or Services supplied at any time by the Seller together with all other sums owing to the Seller have been paid in full.
11.2. The Seller shall be entitled to appropriate any payment made by the Buyer in settlement of such invoices or accounts as the Seller in its absolute discretion thinks fit, notwithstanding any purported appropriation to the contrary by the Buyer.
12. Exclusion of Liability
12.1. The Seller shall be under no liability in respect of any defect in the Goods or Services arising from any drawing, design or specifications supplied by the Buyer.
12.2. Except in the case of death or personal injury the Seller’s total liability to the Buyer whether for negligence, breach of contract, misrepresentation or otherwise shall in no circumstances exceed the cost of the defective, damaged, or undelivered Goods or Services determined by the Seller’s net invoice price to the Buyer.
12.3. In no circumstances shall the Seller be liable for any economic loss or damage suffered by the Buyer, including any loss of profits, business revenue, goodwill, anticipated saving, and overhead labour costs.
12.4. Save as mentioned in sub-clause 12.2 and clause 14 hereof or required by statute, the Seller shall be under no liability to the Buyer whatsoever for any defect in, failure of, or unsuitability for any purpose of the Goods or Services.
12.5. The Seller gives no undertaking that the Goods supplied or goods upon which Services have been rendered are fit for any particular purpose and the Buyer relies entirely upon its own skill and judgement in evaluating the suitability of the Goods or Services.
12.6. Any claim by the Buyer which is based on any shortage in or damage to or defect in the quality or condition of the Goods or Services, or their failure to correspond with specification, shall be made in writing and received by the Seller within seven days from the date of delivery.
12.7. Where any valid claim in respect of any Goods or Services is notified to the Seller in accordance with clause 12.6, the Seller shall be entitled to repair or replace the Goods or perform such further Services as the Seller may deem necessary free of charge, or at its sole discretion refund to the Buyer the price of the Goods or Services.
12.8. Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable for and the Buyer shall indemnify the Seller against any claim made by any third party for any consequential loss or damage arising out of or in connection with the supply of the Goods or Services or their use or resale by the Buyer.
12.9. The Seller’s prices are determined on the basis of the limits of liability set out in this clause. In the event that the Buyer requires the Seller to accept a higher limit of liability, the Buyer shall give written notice of this whereupon the Seller will accept such liability providing insurance can be obtained and the cost of such insurance is borne by the Buyer.
13. Guarantee
The Seller will pass on to the Buyer the benefit of any guarantee which the Seller may have received from the supplier of goods or parts or components of goods forming part of the Goods supplied and not manufactured by the Seller, provided that the Seller shall not pass on any benefit greater than that which it will receive.
14. Intellectual Property
All intellectual property rights in the Goods or any drawings, specifications or designs prepared by the Seller for use in the production of the Goods or Services shall at all times remain vested in the Seller as the Seller’s absolute property and the Buyer shall not reproduce or use all or any of them, nor divulge to third parties details of any designs, drawings, specifications or other technical information without the Seller’s prior written consent.
15. Seller’s Indemnity and Insurance
Where the Buyer shall supply goods or materials to the Seller in connection with the supply of Goods and/or Services hereunder:
15.1. The Buyer shall indemnify and keep indemnified the Seller from and against any and all loss, damage or liability suffered, and legal fees and costs incurred by the Seller as a result of any defect or hazard which appears in or arises in connection with the goods or materials supplied unless the Buyer can prove that the defect did not arise from any cause within its control.
15.2. The Buyer shall be responsible for insuring the goods or materials supplied pursuant to this clause against all risks until such time as the Seller shall commence conversion of or work upon such goods or materials.
16. Force Majeure
Without prejudice to the generality of any of these conditions, the Seller shall not be liable for any loss or damage caused by the non-performance or delay in the performance of any of its obligations hereunder if the same is occasioned by any cause whatsoever which is beyond the Seller’s control. Should any such event occur the Seller may cancel or suspend this contract without incurring any liability for any loss or damage thereby occasioned.
17. General
17.1. Any notice required or permitted to be given by either party to the other under these conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified.
17.2. No waiver by the Seller of any breach of contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
17.3. If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these conditions shall not be affected.
17.4. Any dispute arising under or in connection with these conditions or the sale of the Goods or Services shall be referred to arbitration by a single arbitrator appointed by agreement or, if not agreed within fourteen days, by the Chartered Institute of Arbitrators whose decision shall be final and binding upon both parties.
17.5. The construction, validity and performance of the contract shall be governed by and be interpreted in accordance with English law. The parties agree to submit themselves to the non-exclusive jurisdiction of the English courts for the purposes of these terms and conditions.