The small print - Terms & Conditions of Sale
1. Interpretation
1.1 In these Terms and Conditions, unless the context otherwise requires, the following expressions have the following meanings: “ER” means Evolution Rotacasters Ltd, a company registered in England and Wales of Lodge Park, Lodge Lane, Langham, Colchester, Essex CO4 5NE, UK; Registered No: 6144640, “Working Day” means any day other than a Saturday, Sunday or bank holiday; “Buyer” means the person who accepts a quotation or offer of ER for the sale of the Goods or whose order for the Goods is accepted by ER; “Contract” means the contract for the purchase and sale of the Goods under these Terms and Conditions; “Contract Price” means the price stated in the Contract payable for the Goods; “Delivery Date” means the date on which the Goods are to be delivered; “Goods” means the goods (including any instalment of the goods or any parts for them) which ER is to supply in accordance with these Terms and Conditions; “Month” means a calendar month
1.2 Unless the context otherwise requires, each reference in these Terms and Conditions to “writing”, and any cognate expression, includes a reference to any communication effected by electronic or similar means; a statute or a provision of a statute is a reference to that statute or provision as amended or re-enacted at the relevant time; “these Terms and Conditions” is a reference to ER’s Terms and Conditions and any Schedules as amended or supplemented at the relevant time; a Schedule is a schedule to these Terms and Conditions; and a Clause or paragraph is a reference to a Clause of these Terms and Conditions (other than the Schedules) or a paragraph of the relevant Schedule. A “Party” or the “Parties” refer to the parties to these Terms and Conditions
1.3 Headings used in these Terms and Conditions are for convenience only and shall have no effect upon the interpretation of these Terms and Conditions. Words imparting the singular number shall include the plural and vice versa. References to gender shall include the other gender
2. Application of Conditions
ER shall sell and the Buyer shall purchase Goods in accordance with any quotation or offer of ER which is accepted by the Buyer, or any order of the Buyer which is accepted by ER; and these Terms and Conditions 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 by ER, or any such order is made or purported to be made, by the Buyer
3. Basis of Sale
ER’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the ER in writing. In entering into the Contract the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed. No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and Evolution Rotacasters. Sales literature, price lists and other documents issued by ER in relation to the Goods are subject to alteration without notice and do not constitute offers to sell the Goods which are capable of acceptance. No contract for the sale of the Goods shall be binding on ER unless ER has issued a quotation which is expressed to be an offer to sell the goods or has accepted an order placed by the Buyer by whichever is the earlier of: ER’s written acceptance; delivery of the Goods; or ER’s invoice. Any typographical, clerical or other accidental errors or omissions in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by ER shall be subject to correction without any liability on the part of ER
4. Orders and Specifications
No order submitted by the Buyer shall be deemed to be accepted by ER unless and until confirmed in writing by ER’s authorised representative. The specification for the Goods shall be that set out in ER’s sales documentation unless varied expressly in the Buyer’s order (if such variation(s) is/are accepted by ER). The Goods will only be supplied in the minimum units thereof stated in ER’s price list or in multiples of those units. Orders received for quantities other than these will be adjusted accordingly. Illustrations, photographs or descriptions whether in catalogues, brochures, price lists or other documents issued by ER are intended as a guide only and shall not be binding on ER. ER reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory or regulatory requirements or, where the Goods are to be supplied to the Buyer’s specification, which do not materially affect their quality or performance. No order which has been accepted by ER may be cancelled by the Buyer except with the agreement in writing of ER on the terms that the Buyer shall indemnify ER in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by ER as a result of such cancellation
5. Price
The price of the Goods shall be the price listed in ER’s Price List current at the date of acceptance of the Buyer's order or such other price as may be agreed in writing by ER and the Buyer. Where ER has quoted a price for the Goods other than in accordance with ER's published price list the price quoted shall be valid for 30 days only or such lesser time as ER may specify. ER reserves the right, by giving written notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to ER which is due to any factor beyond the control of ER (including, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which are requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give ER adequate information or instructions. Except as otherwise stated under the terms of any quotation or in any ER price list, and unless otherwise agreed in writing between the Buyer and ER, all prices are exclusive of ER’s charges for packaging and transport. The price is exclusive of any applicable value added tax, excise, sales taxes or levies of a similar nature which are imposed or charged by any competent fiscal authority in respect of the Goods, which the Buyer shall be additionally liable to pay to ER
6. Payment
All payments to ER shall be made to ER via BACS or cash. With regards to sales of Evolution rotational casting machines, the Buyer is required to pay 50% of the total value of the order to confirm the order, the balance being payable prior to delivery. With regards to sales of Acrylic One materials, sales of material shall be on a pro forma basis unless a credit account with the Buyer has been set up. In the case of credit accounts the Buyer shall pay the price of the Goods (less any discount or credit allowed by ER, but without any other deduction credit or set off) within 30 Working Days of the date of ER’s invoice. Payment shall be made on the due date notwithstanding that delivery may not have taken place and/or that the property in the Goods has not passed to the Buyer. The time for the payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request. ER is not obliged to accept credit orders from any customer or buyer who has not supplied ER with references satisfactory to ER. If at any time ER is not satisfied as to the creditworthiness of the Buyer it may give notice in writing to the Buyer that no further credit will be allowed to the Buyer in which event no further goods will be delivered to the Buyer other than against full cleared payment and all amounts owing by the Buyer to ER shall be immediately payable
7. Delivery
Delivery of the Goods shall be made by ER delivering the Goods to the place in the United Kingdom specified in the Buyer’s order and/or ER’s acceptance as the location to which the Goods are to be delivered. The Delivery Date is approximate only and time for delivery shall not be of the essence unless previously agreed by ER in writing. The Goods may be delivered by ER in advance of the Delivery Date upon giving reasonable notice to the Buyer. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by ER to deliver any one or more of the instalments in accordance with these Terms and Conditions 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. If the Buyer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, consents or authorisations required to enable the Goods to be delivered on that date, ER shall be entitled upon giving written notice to the Buyer to store or arrange for the storage of the Goods and then notwithstanding the provisions of Clause 10 risk in the Goods shall pass to the Buyer, delivery shall be deemed to have taken place and the Buyer shall pay to ER all costs and expenses including storage and insurance charges arising from such failure
8. Non-Delivery
If Goods cannot be delivered or Services rendered by any estimated or target Delivery Dates given by ER, ER may elect to cancel the order and refund any money paid by the Buyer. If the delay of delivery is not due to gross negligence or intent on ER’s side, ER is solely liable to refund any money paid by the Customer to ER; right for damages based on delay in such an event is excluded. The buyer must notify ER of any failed delivery within five Working Days of the agreed Delivery Date
9. Inspection/Shortage
9.1 The Buyer is under a duty whenever possible to inspect the Goods on delivery or on collection as the case may be. Where the Goods cannot be examined the carrier’s note or such other note as appropriate shall be marked “not examined”. ER shall be under no liability for any damage or shortages that would be apparent on reasonable careful inspection; if the provisions of this Clause 9 are not complied with and, in any event, will be under no liability if a written complaint is not delivered to ER within 5 Working Days of delivery detailing the alleged damage or shortage. In all cases where defects or shortages are complained of ER shall be under no liability in respect thereof unless an opportunity to inspect the Goods is supplied to ER before any use is made thereof or any alteration or modification is made thereto by the Buyer
9.2 Subject to sub-Clause 9.1 ER shall make good any shortage in the Goods and where appropriate replace any Goods damaged in transit as soon as it is reasonable to do so, but otherwise shall be under no liability whatsoever arising from such shortage or damage
10. Risk and Retention of Title
10.1 Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery
10.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, legal and beneficial title of the Goods shall not pass to the Buyer until ER has received in cash or cleared funds payment in full of the price of the Goods and all packaging and delivery costs and also any other goods otherwise supplied by ER and the Buyer has repaid all moneys owed to ER, regardless of how such indebtedness arose. Until payment has been made to ER in accordance with these Conditions and title in the Goods has passed to the Buyer, the Buyer shall be in possession of the Goods as bailee for ER and the Buyer shall store the Goods separately and in an appropriate environment, shall ensure that they are identifiable as being supplied by ER and shall insure the Goods against all reasonable risks
10.3 In the event that the Buyer sells or transfers the Goods to a third party before legal and beneficial title has passed to him under these Terms and Conditions, the proceeds of the sub-sale or transfer (or such proportion as is due to ER) shall be held by the Buyer on behalf of ER. The Buyer shall ensure that such moneys are held separately from, and are in no way mixed with, any other moneys or funds, and that all moneys held on ER’s behalf are identified as such. 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 ER, but if the Buyer does so all money owing by the Buyer to ER shall (without prejudice to any other right or remedy of ER) forthwith become due and payable
10.4 ER reserves the right to repossess any Goods in which ER retains title without notice. The Buyer irrevocably authorises ER to enter the Buyer’s premises during normal business hours for the purpose of repossessing the Goods in which ER retains title or inspecting the Goods to ensure compliance with the storage and identification requirements of sub-Clause 10.2
10.5 The Buyer’s right to possession of the Goods in which ER maintains legal and beneficial title shall terminate if the Buyer commits or permits any material breach of his obligations under these Conditions; the Buyer enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986, the Insolvent Partnerships Order 1994 (as amended), or any other scheme or arrangement is made with his creditors; the Buyer is or becomes the subject of a bankruptcy order or takes advantage of any other statutory provision for the relief of insolvent debtors; the Buyer convenes any meeting of its creditors, enters into voluntary or compulsory liquidation, has a receiver, manager, administrator or administrative receiver appointed in respect of its assets or undertaking or any part thereof, any documents are filed with the court for the appointment of an administrator in respect of the Buyer, notice of intention to appoint an administrator is given by the Buyer or any of its directors or by a qualifying floating charge-holder (as defined in Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer
11. Assignment
ER may assign the Contract or any part of it to any person, firm or company without the prior written consent of the Buyer. The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of ER
12. Defective Goods
12.1 If on delivery any of the Goods are defective in any material respect and either the Buyer lawfully refuses delivery of the defective Goods or, if they are signed for on delivery as “condition and contents unknown” the Buyer gives written notice of such defect to ER within 10 Working Days of such delivery, ER shall at its option: replace the defective Goods within 10 Working Days of receiving the Buyer’s notice; or refund to the Buyer the price for those Goods(or parts thereof, as appropriate)which are defective; but ER shall have no further liability to the Buyer in respect thereof and the Buyer may not reject the Goods if delivery is not refused or notice give by the Buyer as set out above
12.2 No Goods may be returned to ER without the prior agreement in writing of ER. Subject thereto any Goods returned which ER is satisfied were supplied subject to defects of quality or condition which would not be apparent on inspection shall either be replaced free of charge or, at ER’s sole discretion ER shall refund or credit to the Buyer the price of such defective Goods but ER shall have no further liability to the Buyer
12.3 ER shall be under no liability in respect of any defect arising from fair wear and tear, or any wilful damage, negligence, subjection to normal conditions, failure to follow ER’s instructions (whether given orally or in writing), misuse or alteration of the Goods without ER’s prior approval, or any other act or omission on the part of the Buyer, its employees or agents or any third party. ER 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 statute, or under the express terms of the Contract, for any direct or consequential loss or damage sustained by the Buyer (including without limitation loss of profit or indirect or special loss), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of ER, its servants or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer. Subject as expressly provided in these Terms and Conditions, and except where the Goods are sold under a consumer sale, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law
12.4 Except in respect of death or personal injury caused by ER’s negligence, or as expressly provided in these Terms and Conditions, ER 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 statute, or under the express terms of the Contract, for any direct or consequential loss or damage sustained by the Buyer (including without limitation loss of profit or indirect or special loss), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of ER, its servants or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer
12.5 The Buyer shall be responsible for ensuring that, except to the extent that instructions as to the use or sale of the Goods are contained in the packaging or labelling of the Goods, any use or sale of the Goods by the Buyer is in compliance with all applicable statutory requirements and that handling and sale of the Goods by the Buyer is carried out in accordance with directions given by ER or any competent governmental or regulatory authority and the Buyer will indemnify ER against any liability loss or damage which ER might suffer as a result of the Buyer’s failure to comply with this condition
13. Buyer's Default
13.1 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to ER, ER shall be entitled to cancel the order and/or suspend any further deliveries to the Buyer; appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and ER) as ER may think fit (notwithstanding any purported appropriation by the Buyer); and charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 1% per annum above Bank of England base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest)
13.2 This condition applies if the Buyer fails to perform or observe any of its obligations hereunder or is otherwise in breach of the Contract; the Buyer becomes subject to an administration order enters into a voluntary arrangement under Parts I or VIII of the Insolvency Act 1986 or the Insolvent Partnerships Order 1994 or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation; an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; the Buyer ceases, or threatens to cease, to carry on business; or ER reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly
13.3 If sub-Clause 13.2 applies then, without prejudice to any other right or remedy available to ER, ER shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary
14. Limitation of Liability
14.1 Subject to condition 7, condition 8 and condition 13, the following provisions set out the entire financial liability of ER (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of any breach of these conditions; any use made (including but not limited to modifications)or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract. All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract
14.2 Subject to sub-Clause 14.1 ER’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price; and ER shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
15. Confidentiality, Publications and Endorsements
The Buyer will regard as confidential the contract and all information obtained by the Buyer relating to the business and/or products of ER and will not use or disclose to any third party such information without ER's prior written consent provided that this undertaking shall not apply to information which is in the public domain other than by reason of the Buyer's default. The Buyer will not use, authorise or permit any other person to use any name, trademark, house mark, emblem or symbol which ER is licensed to use or which is owned by ER upon any premises, note paper, visiting cards, advertisement or other printed matter or in any other manner whatsoever unless such use shall have been previously authorised in writing by ER and (where appropriate) its licensor. The Buyer will use its reasonable endeavours to ensure compliance with this Clause 15 by its employees, servants and agents. The provisions of this Clause 15 shall survive the termination of the Contract
16. Communications
All notices under these Terms and Conditions and under the Contract shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice. Notices shall be deemed to have been duly given when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient; or when sent, if transmitted by e-mail and a successful transmission report or return receipt is generated; or on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or on the tenth business day following mailing, if mailed by airmail, postage prepaid. All notices under this Agreement shall be addressed to the most recent address or e-mail address notified to the other Party
17. Force Majeure
Neither Party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that Party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other event that is beyond the control of the Party in question
18. Waiver
The Parties agree that no failure by either Party to enforce the performance of any provision in these Terms and Conditions or under the Contract shall constitute a waiver of the right to subsequently enforce that provision or any other provision. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver
19. Severance
The Parties agree that, in the event that one or more of the provisions of these Terms and Conditions or the Contract are found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (and, by extension, the Contract). The remainder of these and the Contract shall be valid and enforceable
20. Law and Jurisdiction
These Terms and Conditions and the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall be governed by, and construed in accordance with, the laws of England and Wales. Any dispute, controversy, proceedings or claim between the Parties relating to these Terms and Conditions or to the Contract (including any non-contractual matters and obligations arising therefrom or associated therewith) shall fall within the jurisdiction of the courts of England and Wales.
