INSTRUMENTS LIMITED STANDARD CONDITIONS FOR THE SUPPLY OF GOODS
**The customer’s attention is drawn in particular to the provisions of clause 3.3, clause 5.7 and clause 10. **
1.1 Definitions. In these Conditions, the following definitions apply: Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Conditions: The terms and conditions set out in this document as amended from time to time in accordance with clause 13.6.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Force Majeure Event: has the meaning given in clause 12.
Goods: the goods (or any part of them) set out in the Order.
Order: The Customer’s order for the Goods, as set out in the Customer’s purchase order form or the Customer’s written acceptance of the Supplier’s quotation as the case may be.
Specification: any specification for the Goods, including but not limited to any related plans and drawings and provisions as to gases, that is agreed in writing by the Customer and the Supplier.
Supplier: AG Instruments Limited, a company registered in England and Wales with company number 07099255 and registered office at 3 Astley Close, Leamington Spa, Warwickshire CV32 6PT.
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors or permitted assigns.
1.2.3 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.4 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2.5 A reference to writing or written includes faxes and e-mails.
2. PREVAIL CLAUSE
2.1 If there is an inconsistency between any of the provisions of these Standard Conditions and the provisions of any attached Distribution Agreement, the provisions of the Distribution Agreement shall prevail.
3. BASIS OF CONTRACT
3.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate. Any specific terms that the Customer wishes to include in its Order that are not expressly included as part of the Specification will not be included in the Goods provided by the Supplier.
3.3 The parties acknowledge and agree (and acceptance of these Conditions is evidence of such agreement) that, due to the complex nature of the Goods, the Supplier may need to conduct research and/or perform certain tests in order to ascertain whether or not the Supplier is able to manufacture the Goods specified in certain Orders. As such, there may be some cases where, after conducting such research and/or tests, the Supplier concludes that it is unable to manufacture the Goods specified in an Order. In such circumstances, the Supplier shall be entitled to cancel the contract by notice in writing to the Customer and the Supplier’s liability shall be as set out in clause 5.7.
3.4 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
3.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
3.6 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
3.7 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
4.1 The Goods are as described in the Supplier’s catalogue as modified by any applicable Specification.
4.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification. This clause 4.2 shall survive termination of the Contract.
4.3 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
5.1 The Supplier shall ensure that:
5.1.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
5.1.2 if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier’s expense.
5.2 Unless otherwise agreed in writing between the parties, the Customer shall collect the Goods from the Supplier’s premises at AG Instruments Limited, Unit 9, Trident Park, Poseidon Way, Warwick CV34 6SW or such other location as may be advised by the Supplier prior to delivery (Delivery Location) within three (3) Business Days of the Supplier notifying the Customer that the Goods are ready.
5.3 Delivery of the Goods shall be completed on the completion of loading of the Goods at the Delivery Location.
5.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.5 Subject to clauses 5.6 and 5.7, if the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
5.6 The Supplier 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 Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
5.7 Where, upon receiving an Order, the Supplier conducts research and/or performs certain tests to ascertain whether it is able to manufacture the Goods that have been ordered by the Customer and subsequently concludes that it is unable to do so, the Supplier shall be entitled to cancel the Order and the Supplier’s sole liability to the Customer shall be to return to the Customer any monies paid by the Customer to the Supplier in respect of such Order. The parties acknowledge and accept that due to the nature of the Goods and the specific Orders that may be submitted in relation to such Goods, this outcome is a possibility.
5.8 If the Customer fails to take delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
5.8.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and 5.8.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
5.9 If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
5.10 The Customer shall not be entitled to reject the Goods if the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Customer that the wrong quantity of Goods was delivered.
5.11 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Goods shall:
6.1.1 conform in all material respects with their description and any applicable Specification;
6.1.2 be free from material defects in design, material and workmanship; and
6.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).
6.2 The warranty period may be extended for an additional 12 months, subject to the written agreement of both parties, if the Goods are returned to the Supplier for annual calibration and testing.
6.3 Subject to clause 6.4, if:
6.3.1 the Customer gives notice in writing to the Supplier during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1;
6.3.2 the Supplier is given a reasonable opportunity of examining such Goods; and
6.3.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
6.4 The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in clause 6.1 in any of the following events:
6.4.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 6.2;
6.4.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
6.4.3 the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
6.4.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
6.4.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
6.4.6 the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.5 Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 6.1.
6.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
6.7 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
7. TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
7.2.1 the Goods; and
7.2.2 any other goods or services that the Supplier has supplied to the Customer in respect of which payment has become due.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
7.3.1 hold the Goods on a fiduciary basis as the Supplier’s bailee;
7.3.2 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
7.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.2;
7.3.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time; and
7.3.6 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery, but the Customer may resell or use the Goods in the ordinary course of its business.
7.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
8. PRICE AND PAYMENT
8.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
8.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
8.2.1 any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
8.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
8.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
8.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
8.4 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
8.5 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
8.6 The Customer shall pay the invoice in full and in cleared funds within 14 Business Days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
8.7 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above The Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
8.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
9. CUSTOMER’S INSOLVENCY OR INCAPACITY
9.1 If the Customer becomes subject to any of the events listed in clause 9.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
9.2 For the purposes of clause 9.1, the relevant events are:
9.2.1 the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
9.2.2 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors [other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer];
9.2.3 (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
9.2.4 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
9.2.5 (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
9.2.6 (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver; 9.2.7 a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
9.2.8 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2.1to clause 9.2.7 (inclusive);
9.2.9 the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business;
9.2.10 the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
9.2.11 (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
9.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. LIMITATION OF LIABILITY
10.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
10.1.1 death or personal injury caused by its negligence, or the negligence
of its employees, agents or subcontractors (as applicable);
10.1.2 fraud or fraudulent misrepresentation;
10.1.3 breach of the terms implied by section 12 of the Sale of Goods Act
10.1.4 defective products under the Consumer Protection Act 1987; or
10.1.5 any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.
10.2 Subject to clause 10.1:
10.2.1 the Supplier shall under no circumstances whatever be liable to the Customer, 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
10.2.2 the Supplier’s total liability to the Customer 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 the price of the Goods.
11. INTELLECTUAL PROPERTY
11.1 Intellectual Property includes any inventions, patents, registered or unregistered trade marks and designs, utility models, copyrights, design copyrights, applications for any of the foregoing and the right to apply for them in any part of the world, discoveries, creations, inventions or improvements upon or additions to an invention, confidential information, know how and any research relating to the above, business names, whether registrable or not, moral rights and any similar rights in any country, other intellectual property and/or scientific information or documentation, database rights, plant breeders rights, computer programs, semiconductor topographies, goodwill and the styles of presentation of goods or services and in applications for protection of them in any jurisdiction, visuals, kit lists, fitting guides and maintenance guidelines (‘IP’).
11.2 For the avoidance of doubt all IP of the goods supplied by AG Instruments shall be used by the Customer only in accordance with the specifications of the Goods and their scope.
11.3 Any IP in or arising out of or in connection with the Goods will be owned by the Supplier.
11.4 IP may not be duplicated, altered or distributed without the Supplier’s prior written consent. The Supplier does not accept any contractual or consequential liability for the content, scale or dimensional accuracy of this document.
12. FORCE MAJEURE
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed, provided that if the period of delay or non-performance continues for one month, the party not affected may terminate this agreement by giving 14 days’ written notice to the other party.
13.1 Assignment and subcontracting.
13.1.1 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
13.1.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
13.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post, recorded delivery, commercial courier, fax or e-mail.
13.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.2.1; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
13.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
13.3.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
13.3.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
13.4 Waiver. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.6 Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.
13.7 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
© AG Instruments Limited, November 2019