STANDARD TERMS AND CONDITIONS OF SUPPLY
1.1 The definitions and rules of interpretation in this condition apply in these Conditions:
Business Day means a day (other than a Saturday, Sunday or public holiday) when banks in Edinburgh are open for business;
Buyer means the person, firm or company who purchases the Goods or Services from the Company.
Company means Sterner AquaTech UK Ltd, a company incorporated under the Companies Acts (SC221499) and having its registered office at 1 Longman Drive, Inverness, United Kingdom, IV1 1SU, or any member of its Group;
Conditions means the terms and conditions set out in this document as amended from time to time in accordance with Clause 12.4;
Contract means any contract between the Company and the Buyer for the sale and purchase of the Goods or supply of Services in accordance with these Conditions;
Delivery Location means the location set out in the order or such other location as the parties may agree;
Deposit means 50%, or any other agreed percentage, of the value of any invoice due to be issued by the Company to the Buyer;
Force Majeure Event means an event or circumstance beyond a party’s reasonable control;
Goods means any Goods (or any part or parts of them) agreed in the Contract to be supplied to the Buyer by the Company (including any labour and repairs);
Group means, in relation to a party, that party, any subsidiary or holding company from time to time of that party, and any subsidiary from time to time of a holding company of that party;
Services means any service agreed in the Contract to be carried out by the Company including for the purposes of maintaining or servicing Goods or other goods, or remedying any fault or faults with the Goods;
Special Order means products or services that have been specifically altered to a Buyer’s agreed specification; and
WEEE Regulations means The Waste Electrical and Electronic Equipment Regulations 2013.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other genders.
1.5 Condition headings do not affect the interpretation of these conditions.
2 BASIS OF CONTRACTS
2.1 Subject to any variation under clause 12.4, these Conditions shall apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom practice or course of dealing.
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer´s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 Each order or acceptance of a quotation constitutes an offer by the Buyer to purchase the Goods and/or Services in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable specification are complete and accurate.
2.4 An order shall only be deemed to be accepted when the Company issues a written acceptance of the order or (if earlier) the Company delivers the Goods to the Buyer or, in respect of Services, performs the Services.
2.5 The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions.
2.6 A quotation for the Goods and/or Services given by the Company shall not constitute an offer. A quotation shall, unless previously withdrawn, only be valid for a period of 30 days from its date of issue.
2.7 A quotation given by the Company shall be given as a guide only. A quotation shall be given on the basis of what the Company can see and reasonably estimate without dismantling the Goods.
2.8 Where the Buyer instructs the Company to dismantle the Goods and additional repair works are discovered, the Company reserves the right to issue an additional quotation in respect of those works.
2.9 Where the Buyer instructs the Company to dismantle the Goods for the purposes of preparing a quotation, and the said quotation is not accepted by the Buyer, the Company reserves the right to invoice the Buyer for services provided by the Company in dismantling and re-assembling the Goods.
3 GOODS and SERVICES
3.1 The Goods and Services are as described in the Company’s acknowledgment of order.
3.2 All samples, drawings, descriptive matter, quotations, specifications and advertising issued by the Company are issued or published for the sole purpose of giving an approximate idea of Goods and Services specified in them. They shall not form part of the Contract and shall not be treated as a sale by sample.
4.1 The Company shall deliver the Goods to the Delivery Location at any time after the Company notifies the Buyer that the Goods are ready.
4.2 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
The Company shall not be liable for any delay in delivery of the Goods or performance of the Services that is caused by a Force Majeure Event or the Buyer’s failure to provide the Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods or Services.
4.3 Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods or performance of the Services (even if caused by the Company´s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract.
4.4 If for any reason the Buyer fails to accept delivery of the Goods within three Business Days of the Company notifying the Buyer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Company’s failure to comply with its obligations under the Contract:
4.4.1 risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Company´s negligence);
4.4.2 the Goods shall be deemed to have been delivered at 9am on the third Business Day after the date on which the Company notified the Buyer that the Goods were ready; and
4.4.3 the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.5 If ten Business Days after the day on which the Company notified the Buyer that the Goods were ready for delivery the Buyer has not accepted delivery of them, the Company may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods or charge the Buyer for any shortfall below the price of the Goods.
4.6 If the Company delivers up to and including 50% more or less than the quantity of Goods ordered the Buyer may not reject them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.7 The Company may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
5.1 Whereas the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
5.2 The Company warrants that (subject to the other provisions of these conditions) upon delivery:
5.2.1 the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979;
5.2.2 the Goods shall be reasonably fit for the purpose for which they are being supplied; and
5.2.3 any Services shall be provided with due skill and care.
5.3 Subject to Clause 5.4, if:
(a) the Buyer gives notice in writing to the Company during the warranty period within three months of discovery that some or all of the Goods or Services do not comply with the warranty set out in Clause 5.1;
(b) the Company is given a reasonable opportunity of examining such Goods or goods upon which Services were provided; and
(c) the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Buyer’s cost, the Company shall, at its option, repair or replace the defective Goods or re-perform the defective Services, such repair, replacement or re-performance to be to the Company’s satisfaction and at the Company’s cost save as
to labour costs in respect of the replacement of faulty Goods, which shall be payable by the Buyer.
5.4 The Company shall not be liable for the Goods’ or any Services’ failure to comply with the warranty set out in Clause 5.1 in any of the following events:
(a) the Buyer makes any further use of such Goods after giving notice in accordance with Clause 5.3(a);
(b) the defect arises because the Buyer failed to follow the Company’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;
(c) the defect arises as a result of the Company following any instruction, drawing, design or specification supplied by the Buyer;
(d) the Buyer alters or repairs such Goods without the written consent of the Company;
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(f) the Goods or Services differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.5 Except as provided in this Clause 5, the Company shall have no liability to the Buyer in respect of the Goods’ or Services’ failure to comply with the warranty set out in Clause 5.1.
5.6 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.
5.7 Any Goods replaced shall belong to the Company.
- TITLE AND RISK
6.1 The risk in the Goods shall pass to the Buyer on completion of delivery.
6.2 Title to the Goods shall not pass to the Buyer until the Company receives payment in full (in cash or cleared funds) for the Goods and any other goods or services that the Company has supplied to the Buyer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums
6.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
(a) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Company’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify the Company immediately if it becomes subject to any of the events listed in Clause 9.1; and
(e) give the Company such information relating to the Goods as the Company may require from time to time.
6.4 Subject to Clause 6.5, the Buyer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Company receives payment for the Goods. However, if the Buyer resells the Goods before that time:
(a) it does so as principal and not as the Company’s agent; and
(b) title to the Goods shall pass from the Company to the Buyer immediately before the time at which resale by the Buyer occurs.
6.5 If before title to the Goods passes to the Buyer the Buyer becomes subject to any of the events listed in Clause 9.1 , then, without limiting any other right or remedy the Company may have:
(a) the Buyer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
(b) the Company may at any time:
(i) require the Buyer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
(ii) if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
- PRICE AND PAYMENT
7.1 The price of the Goods and Services shall be the price set out in the order, or, if no price is quoted, the price set out in the Company’s published price list in force as at the date of delivery or deemed delivery.
7.2 The Company may, by giving notice to the Buyer at any time up to 3 Business Days before delivery, increase the price of the Goods and/or Services to reflect any increase in the cost of the Goods and/or Services that is due to
(a) any factor beyond the Company’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Buyer to change the delivery date(s), quantities or types of Goods ordered or Services instructed; or
(c) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Company adequate or accurate information or instructions.
7.3 The price of the Goods and Services:
(a) excludes amounts in respect of value added tax (VAT), which the Buyer shall additionally be liable to pay to the Company at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Buyer.
7.4 If the Goods contain waste products which require to be disposed of in accordance with the WEEE Regulations then the Company shall be entitled to make an additional charge for such disposal at a rate of 2.5% of the value of the invoice, plus VAT if applicable.
7.5 Without prejudice to the foregoing Clause 7.4, where the invoice contains no charge for waste disposal, the sole responsibility and liability for disposing of the Goods in accordance with the WEEE Regulations is to rest with the Buyer to the exclusion of the Company.
7.6 Unless the Company in its sole discretion waives the requirement for a Deposit, the Buyer shall pay the Deposit on the date on which the order is placed as a payment to account of the sums due by the Buyer under the Contract.
7.7 Where the Buyer has an existing approved credit account with the Company, the Buyer shall pay the balance due to the Company under the Contract within 30 days of the date of the Company’s invoice (which may be rendered at the Company’s discretion) or the date on which the Company notifies the Buyer that the Goods are ready for delivery or Services have commenced, whichever is earlier . Payment shall be made to the bank account nominated in writing by the Company.
7.8 Where the Buyer does not have an existing approved credit account with the Company, or if it is in default, payment of the sums due to the Company under the Contract shall be made by the Buyer before the Goods are despatched to the Buyer and in the case of Services prior to their commencement.
7.9 Any entitlement of the Buyer for credit, discount or otherwise as to the level, method, manner or terms of payment, shall be for sole determination by the Company and may be varied or withdrawn by the Company at any time.
7.10 Payments due by the Buyer shall be made in cleared funds to a bank account nominated in writing by the Company.
7.11 If the Buyer fails to make any payment due to the Company under the Contract by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 4% per annum above Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
7.12 The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Time of payment shall be of the essence of the Contract. The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Company to the Buyer.
8.1 Where Goods are returned by the Buyer to the Company, subject to Clause 8.3, credit shall be refunded to the Buyer if:
(a) the Goods (including all of their component parts) are returned to the Company within 7 days of purchase;
(b) the original invoice number has been quoted by the Buyer; and
(c) the Company has, in its sole and exclusive discretion, approved the refund of credit.
8.2 The Company reserves the right to apply a 20% handling charge for returned Goods.
8.3 The Company shall be under no obligation to accept return of Goods, or to approve refund of credit, including but not limited to in relation to returned Goods which are a Special Order.
9.1 Without limiting its other rights or remedies, the Company may terminate this Contract with immediate effect by giving written notice to the Buyer if:
(a) the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
(b) the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its
(d) the Buyer’s financial position deteriorates to such an extent that in the Company’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
9.2 Without limiting its other rights or remedies, the Company may suspend provision of the Goods and/or Services under the Contract or any other contract between the Buyer and the Company if the Buyer becomes subject to any of the events listed in Clause 9.1(a) to Clause 9.1(d), or the Company reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
9.3 Without limiting its other rights or remedies, the Company may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
9.4 On termination of the Contract for any reason the Buyer shall immediately pay to the Company all of the Company’s outstanding unpaid invoices and interest.
9.5 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
9.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
- LIMITATION OF LIABILITY
10.1 Nothing in these Conditions shall limit or exclude the Company’s liability for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979;
(d) defective products under the Consumer Protection Act 1987; or
(e) any matter in respect of which it would be unlawful for the Company to exclude or restrict liability
10.2 Subject to Clause 10.1:
(a) the Company shall under no circumstances whatsoever be liable to the Buyer, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, for (i) any loss of profit, or (ii) any indirect loss or (iii) any consequential loss arising under or in connection with the Contract; and
(b) the Company shall under no circumstances whatsoever be liable to the Buyer, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, for any costs, losses or liability in respect of or arising from the loss of or damage to fish stocks; and
(c) the Company’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 the price paid under the Contract.
- FORCE MAJEURE
The Company reserves the right to defer the date of delivery or to cancel the Contract if it is prevented from or delayed in the performance of its obligations under this Contract if such delay or failure resulted from a Force Majeure Event. If the period of delay or non-performance continues for a continuous period of 8 weeks the Buyer may terminate this Contract by giving 30 days written notice to the Company.
12.1 Assignation and other dealings.
(a) The Company 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.
(b) The Buyer may not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Company.
(a) Each party undertakes that it shall not at any time during this agreement, and for a period of one year after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the Group to which the other party belongs, except as permitted by Clause 12.2(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s
confidential information comply with this Clause 12.2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
12.3 Entire agreement.
(a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in this agreement.
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(a) 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 or other next working day delivery service, commercial courier, or email.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 12.7(a); if sent by pre-paid first class post or other next working day delivery service, 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 email, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.8 Third party rights.
No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
12.9 Governing law.
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of Scotland.
Each party irrevocably agrees that the courts of Scotland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.