Conditions Of Contract
In these conditions (unless the context otherwise requires) the following terms have the following meanings:
|The Seller||Saturn Automation Inc.|
|Purchaser||The person, firm or company|
|Contract ||The contract for the provision of Goods and the services made between the Seller and the Purchaser of which these conditions comprise part.|
|The Goods||The goods or any part thereof agreed to be sold and as described in the Particulars on Contract as repaired or replaced by the Seller pursuant to the Contract|
|The Services||The services which the Seller has agreed to provide as described in the Particulars of Contract which are ancillary to the sale of Goods such as, without implying limitation, installation, erection and/or testing.|
|Particulars ||The particulars of Contract on the front-page hereof (or attached hereto) including the Specifications and any special conditions agreed by the Seller and the Seller and the Purchaser and attached hereto or otherwise agreed in writing after the date hereof.|
|Specification||Means the description and technical specification of the Goods and/or Services, set out in or attached to the Particulars of Contract.|
|Estimated||the estimated period for delivery of the goods or the relevant installment of|
|Period||of the services relating to the relevant installment as the case may be, as specified in the Particulars of Contract.|
|Delivery||the Goods, as the case may be, and for the completion of the Services or part|
|Contract||Purchaser and attached hereto or otherwise agreed in writing after the date hereof.|
a) These conditions govern all contracts made by the Seller for the supply of goods and/or the performance of services.
b) All quotations given, and all contracts made by the Seller are subject to the terms and conditions contained herein, and all conditions referred to by the Purchaser, or contained in any order or acceptance of quotation or otherwise brought to the notice of the Seller are hereby excluded, and no action on the part of the Seller (whether by delivery of goods or otherwise) shall be construed as an acceptance of any other condition.
c) No employee or agent of the Seller has authority to make any representation or give any warranty relating to the Goods and/or Services or to agree any variation of or addition to these conditions unless such representation, warranty, variation or addition is in writing and signed on behalf of the Seller by a person duly authorised.
d) These conditions together with the Particulars of Contract embody the entire understanding of the parties and supersede any prior promises, representations, undertakings or implications.
3. Acceptance of Order
The Contract shall come into force when accepted by the Seller in writing, but may at the Seller's option cease to be binding on the parties, (save for this Clause 3) if within 30 days from the date the Contract comes into force, the Purchaser has not.
a) obtained all necessary licenses, consents and approvals and given particulars to the Seller or,
b) given to the Seller all necessary technical information required by the Seller and signed agreed technical specifications, or
c) paid the deposit, referred to in the Particulars of Contract (if any) or
d) fulfilled any other conditions referred to in the Particulars of Contract and in any of such circumstances the Purchaser shall reimburse the Seller for all loss and expenses it may have already incurred or may thereafter incur in connection with this Contract.
a) Unless provided otherwise in the Particulars of Contract the price quoted shall be ex works and is exclusive of VAT and all charges for any erection, packing, insurance, freight and delivery charges.
b) The Seller is free to increase quoted prices (whether accepted or not) to cover variations in cost of materials, manufacture, carriage, and insurance when such variations in such costs arise between the date of quotation and the date of the Contract coming into force
5. Additions, Alterations and Improvements
a) The Seller may carry out, without notice to the Purchaser, alterations or improvements in design, materials or methods of manufacture from time to time and may substitute other reasonably similar parts for any proprietary parts ordered by the Purchaser, which the Seller considers to be unprocurable, or unprocurable within a reasonable time, or unprocurable with difficulty or at an excessive cost.
b) Further, the Seller may supersede, materially alter or abandon the design or type of the Goods contracted for and may substitute another design or type. In exercising this right, the Seller shall give written notice to the Purchaser and the Purchaser may within 14 days after such notice is given, terminate the Contract by giving notice to the Seller. If the Contract is so terminated the deposit paid to the Seller, if any shall be returned to the Purchaser, but the Seller shall have no other liability whatsoever for any loss, damage, cost, expense, action and/or claim which may be suffered or incurred by the Purchaser.
c) The Seller shall be entitled to charge the Purchaser for all goods and/or services additional to and not included in the Goods and the Services. Charges shall be raised at the Seller's rate of charge current at the date of execution or supply of the additional Goods and/or Services. While the Seller will endeavour to advise the Purchaser before such changes are incurred the Purchaser shall be deemed to have authorised the Seller to execute and/or supply such additional goods and/or services as the Seller may consider to be appropriate in the best interests of the Purchaser.
a) Save to the extent provided otherwise in the Particulars of Contract, the provisions of this clause 6 shall apply.
b) Payment shall be in accordance with the Seller's standard terms of payment in the United Kingdom applicable from time to time and unless such terms provide otherwise, payment for any sum invoiced shall be due in cash not later than 14 days from the date of invoice.
c) The deposit (if any) paid in accordance with the Particulars of Contract is irrevocable, non-refundable (except in accordance with clause 5(b)) and non-interest bearing and for the avoidance of doubt shall be appropriated by the Seller against costs incurred in connection with this Contract.
d) When the Goods are or any instalment of the Goods is made available for delivery to the Purchaser, the Seller may submit an invoice for the Price or the appropriate instalment of the Price as the case may be.
e) If upon the terms applicable to the Contract, the Price shall be payable by instalments or if the Purchaser has agreed to take specified quantities of Goods at specified times, a default by the Purchaser of the payment of any due instalment of the Price or the failure to give delivery instructions in respect of the quantity of Goods outstanding shall cause the whole of the balance of the Price to become due forthwith.
f) Payment of the Price or the relevant instalment of the Price, as the case may be, shall be made in full to the Seller in accordance with the terms of the Contract and the Purchaser shall not be entitled to exercise any right of set off, lien, deduction withholding or any other similar right or claim whatsoever which the Purchaser would otherwise have saved for this provision (including but without implying any limitation, any such right or claim arising after an instalment of the Goods has been delivered, because of non-delivery of other instalments or other subsequent default by the Seller.)
g) If any payment that is to be made hereunder to the Seller is more than 30 days overdue, the Seller shall be entitled (without prejudice to any other rights or remedies and without giving prior notice) to charge interest thereon, from the date of default until the sum due is paid (as well after as before judgement) on a day to day basis at a rate of 4% above the Midland Bank Plc Base Rate from time to time applicable with a minimum rate of 10% per cent per annum.
h) Time of payment shall be of the essence and failure to make any payment on the due date, or any other breach by the
(i) Purchaser shall entitle the Seller without prejudice to its other rights hereunder: to suspend performance of this Contract until arrangements as to payment have been established to the satisfaction of the Seller or
(ii) on giving 14 days notice to terminate this Contract and on such termination the relevant provisions of clause 19 shall apply.
i) In the event that the Seller may decide to take any legal steps for the recovery of any overdue payment then the Purchaser shall indemnify the Seller for the cost of all such steps (before as well as after judgement).
j) Any warranty of the Seller under, pursuant to or in connection with the Contract is condition upon payment of all amounts due to the Seller under, pursuant to or in connection with the Contract, and for the avoidance of doubt, the Seller shall have no liability at common law, pursuant to statute or otherwise for any breach of any such warranty unless such amounts have been paid in full.
a) Unless otherwise specified in the Particulars of Contract delivery shall take place at the Seller's works or at the place of performance of the Services.
b) The Seller will endeavour to give delivery of the Goods or each Instalment of the Goods at or about the end of the Estimated Delivery Period or within a reasonable time thereafter, but in respect of delivery, time is not to be the essence of the Contract and any delay in delivery of the Goods and/or one or more instalments thereof beyond a reasonable time after the Estimated Delivery Period shall not entitle the Purchaser to rescind or otherwise terminate the Contract. Further the Seller shall not be responsible nor liable for any loss, damage, cost, expense, action and/or claim arising directly or indirectly from the Seller's breach of contract or statutory duty and/or negligence or other tortuous act or omission.
c) The Estimated Delivery Period shall be calculated as from the date on which all the conditions specified in Clause 3 hereof shall have been complied with.
d) Where the Goods are handed to a carrier for carriage to the Purchaser any such carrier shall be deemed to be the agent of the Seller and not the Purchaser for the purposes of Sections 44, 45 and 46 of the Sale of Goods Act 1979.
e) Unless within 10 days of receipt of an invoice in respect of the Goods or one or more instalments of the Goods which the Seller alleges have been delivered to the Purchaser, the Purchaser shall notify the Seller in writing that the Goods or any relevant instalments of the Goods, as the case may be, have not been delivered to the Purchaser, the Goods or the relevant instalments of the Goods shall be deemed to be delivered to the Purchaser.
f) The Purchaser shall inspect the Goods or any instalment of the Goods upon delivery thereof. Unless the Purchaser shall notify the Seller, in writing within 7 days of delivery, of any defects and/or damage in the Goods or any instalment of the Goods, which would have been apparent upon a reasonable inspection of the same at delivery thereof, the Seller shall have no liability at common law, pursuant to statute or otherwise to the Purchaser, for any such defect and/or damage (whether arising directly or indirectly from any breach of contract or statutory duty, negligence or other tortuous act or omission or otherwise) and the Goods or the instalment of the Goods as the case may be shall be deemed to be in all respects with the Contract and the Purchaser shall be bound to pay for the same accordingly.
a) The Seller shall entitled to store the Goods (or any instalment of them) at its own premises or elsewhere in either case at the Purchaser's expense if:
(i) where the Goods are or the instalment is, as the case may be, delivered at the seller's premises and the Purchaser fails to take delivery of the same when made available for delivery or
(ii) where the Goods are or the instalment is as the case may be, delivered to some other place and either a) the Seller is unable to despatch the Goods or the instalment as the case may be, by reason of any act or omission on the part of the Purchaser: or b) the Seller has made the Goods or the instalment, as the case may be but the Purchaser fails to take delivery or
(iii) the Seller is withholding delivery of the Goods or the instalment as the case may be pursuant to Clause 6 (h) (i) hereof.
b) The expenses that the Seller shall be entitled to reclaim from the Purchaser shall include all reasonable costs incurred by the Seller (whether by way of storage, insurance or otherwise). In respect of the Goods or the instalment, as the case may be and it is expressly declared that it shall be reasonable for the Seller to affect insurance in respect of the same notwithstanding that the risk therein has passed to the Purchaser.
9. Title, Risk and Property Reservation
a) Until the Goods have been paid for in full to the Seller:
(i) The legal title and property in the Goods shall not pass to the Purchaser.
(ii) The Purchaser shall after delivery keep the Goods or any instalment thereof insured to their full value and the Seller's interest noted thereon.
(iii) If the Purchaser is in breach of any of the terms of this agreement, including but not limited to non-payment of monies due to the Seller, and title has not passed, the Seller shall have the right, upon giving not less than 48 hours notice in writing, to enter the Premises of the Purchaser and remove the Goods. The Seller shall not be responsible for any damages caused thereto except such damage caused by the negligence of its servants or agents.
(iv) The Purchaser hereby grants to the Seller an irrevocable licence to enter on to the land and premises of the Purchaser where the Goods are situate for the purposes of removing them in accordance with this clause.
b) From the time when the Goods are or any instalment thereof is made available for delivery to the Purchaser, the Goods or such instalment, as the case may be shall, notwithstanding that the legal title may have remained with the Seller, be at the sole risk of the Purchaser.
c) Where property in the Goods has not passed, the Seller may nevertheless maintain an action against the Purchaser for the purchase price and all other monies owing to the Seller by the Purchaser notwithstanding Section 49 of the Sale of Goods Act 1979.
10. Intellectual Property
a) The copyright in all drawings, patterns, data, literature photographs, illustrations, specifications, performance data, dimensions, weights, manufacturing and operating techniques and the like ("the information") shall remain the property of the Seller and (except marked as or otherwise indicated) the Information shall be confidential and shall not be disclosed or used except where the Purchaser has paid all sums due to the Seller under the Contract and only as necessary for the purpose of application and use by the Purchaser of the Goods in relation to which they were supplied.
b) All the Information, whether contained in the Contract or made by way of representation, have been provided by the Seller in the belief that it is as accurate as reasonably possible, but it does not, save for the Specification, constitute a description of the Goods and shall not be taken to be a representation made by the Seller, and is not warranted to be accurate.
c) The Purchaser shall not alter or deface any of the Seller's registered trade marks as marked on the Goods when the Goods are so marked or apply to them such other trade mark or written matter which is likely to injure the reputation of the Seller's trade mark.
d) The Seller shall indemnify the Purchaser against damage and costs awarded as a consequence of the Goods themselves and the delivery or importation thereof infringing any patent rights published (at the date of the Contract) in the United kingdom provided always that:
(i) this indemnity shall not apply to any infringement which is due to the Seller having followed an instruction, furnished or given by the Purchaser, or to the use of such material, in a manner or for a purpose, or in a foreign country not specified or disclosed to the Seller, or in combination with any other materials or process.
(ii) this indemnity is conditional, on the Purchaser giving to the Seller the earliest possible notice in writing of any claim being made or action threatened against the Purchaser, and on the Purchaser permitting the Seller, at the latter's expense to conduct any litigation that may ensue and all negotiations for a settlement of the claim.
e) There is no licence granted, (implied or express) to manufacture, produce or sell or otherwise use the Goods in a manner, which may infringe any patent rights, owned by the Seller and others.
f) The Purchaser warrants that any instructions furnished or given by the Purchaser shall not be such as will cause the Seller to infringe any letters patent, copyright, utility model, registered design, right of confidence, or trade mark in execution of the Purchaser's order.
The Seller is entitled at any time to sub-contract the Contract or any part thereof to any person, firm or company as it sees fit.
12. Outside Work
Where the Seller delivers any goods to and/or provides any services at the Purchaser's premises or other premises, the Purchaser shall indemnify the Seller against cost, loss expense and/or damage suffered or incurred by the Seller and against all actions and/or claims by third parties (including the Seller's employees) arising directly or indirectly from the carrying out of other works at such premises or from defects in or unsuitability of other works being carried out at such premises or apparatus or plant (other than apparatus or plant supplied by the Seller) or from negligence or other tortuous acts or omission and/or breach of contract or statutory duty on the part of the Purchaser, its employees or any third party (other than the Seller's own employees) and howsoever arising.
13. Installation and Testing
a) Where the Seller undertakes the erection, installation and/or testing of Goods (or any part thereof) the Purchaser shall at its own expense provide such layout and other drawings and information and such power, compressed air, water and other facilities as the Seller may require and changes and costs in connection with such provision shall be done by the Purchaser.
b) The Purchaser shall bear and indemnify the Seller against all travel and subsistence costs incurred by the Seller's employees and agents in providing any erection installation, start-up, testing, maintenance and other related services, where such services are provided otherwise than at the Seller's premises.
c) The Purchaser shall be responsible for compliance with all statutory requirements and third party rights in connection with the siting, installation, erection and use by the Seller of the Goods to the Purchaser's order and shall indemnify the Seller accordingly.
d) The Seller's prices for any installation and erection are based on free and continuous access to the site with hard standing, carnage and transport adjacent to the erection position. Should delays occur beyond the control of the Seller such extra costs and expenses as may be incurred due to such delays shall be done by the Purchaser.
14. Conditions and Warranties
a) Any conditions or warranties (whether express or implied by statute, common law, or arising from conduct or a previous course of dealing, trade custom or usage) that the Goods shall correspond with such description or specification given by or on behalf of the Seller (other than the Specification) are expressly negatived and the use of any such description or specification shall not constitute a sale by description.
b) The Seller will exercise reasonable skill and care in the performance of its obligation under the Contract. Any conditions or warranties (whether express or implied by statute, common law or arising from conduct or a previous course of dealing, trade custom or usage) as to the quality or fitness of the Goods for any particular purpose, even if the purpose is made known expressly or by implication to the Seller are expressly negatived.
c) Notwithstanding that a sample of Goods may have been exhibited to and inspected by the Purchaser, or results of standard tests upon a sample given to the Purchaser, any condition or warranties (whether express or implied by statute, common law or arising from conduct or a previous course of dealing, trade custom or usage) that the Goods shall correspond with such sample or will produce equivalent results to such standard tests is expressly negatived and the exhibition and/or inspection of such sample or the giving of such results shall not constitute a sale by sample or description.
15. Defective Goods
a) Where the Goods are or any part thereof is manufactured by the Seller, the Seller shall have no liability for any defect in the Goods or that part thereof as the case may be, at common law, pursuant to statute or otherwise and whether arising directly or indirectly from any negligence or other tortuous act or omission of and/or any breach of contract or statutory duty by the Seller, its employees, suppliers, sub-contractors or agents or otherwise save where:
(i) such defect is a serious defect which arose from the negligence or other tortuous act or omission of and/under any breach of contract or statutory duty by the Seller and which appeared within 26 weeks of delivery and
(ii) the Purchaser has notified the Seller within 14 days when such defect appeared or ought reasonably to have been discoverable and has, if required by the Seller, sent the allegedly defective Goods to the Seller's premises at the Purchaser's expense (which expense shall be refunded by the Seller if the Seller admits the Goods or part thereof contain a defect as described to in clause 15(a)(i) and
(iii) the seller has, after the later of the notification or if required, return of the allegedly defective goods as referred to in Clause 15(a)(ii), failed to replace or repair free of charge the Goods or that part thereof, as the case may be.
b) Where the Goods (or any part thereof) are not manufactured by the Seller, the Seller will pass on to the Purchaser any benefits obtainable under any warranty given by the Seller's supplier, provided that the Goods have been accepted and paid for by the Purchaser, but shall have no greater or other liability for any defect in the Goods or that part thereof, as the case may be, at common law, pursuant to statute or otherwise and whether arising directly or indirectly from any negligence or other tortuous act or omission of and/or any breach of contact or statutory duty by the Seller, its employees, suppliers, sub-contractors or agents or otherwise.
c) Nothing herein shall impose any liability upon the seller in respect of any defect in the Goods arising out of the acts, omissions, negligence or default of the Purchaser, its servants and agents including in particular but without prejudice to the generality of the foregoing any failure by the Purchaser to comply with any recommendations of the Seller as to storage and handling of Goods.
d) Where the Goods are to be delivered by instalments, any defect in any instalment shall not entitle the Purchaser to rescind or otherwise terminate the Contract and the Purchaser shall be bound to accept delivery of the remaining instalments.
e) Nothing herein contained shall have the effect of excluding or restricting the liability of the Seller for death or personal injury resulting from negligence.
16. Consequential Loss
The Seller's liability at common law, pursuant to statute or otherwise for any losses, costs, claims, actions, damages or expenses arising directly or indirectly from any negligence or other tortuous act or omission or any breach of contract or statutory duty by itself or its employees, suppliers, sub-contractors or agents or otherwise, (including but without implying limitation any losses, costs, claims, damages or expenses calculated by reference to profits, income, production or accruals or loss of profits or loss of such profits, income , production or accrual of such costs, claims, damages or expenses on a time basis,) shall be limited to the direct cost and reasonable cost of repair, replacement or reinstatement of the Goods for which the Purchaser is liable either directly or by way of financial contribution for the same.
17. Limitation of Liability
Without prejudice to Clause 16, the Seller's liability at common law, pursuant to statute or otherwise for any losses, costs, claims, actions, damages or expenses arising directly or indirectly from any negligence or other tortuous act or omission or any breach of contract or statutory duty by itself, its employees, suppliers, sub-contractors, or agents or otherwise shall not exceed the higher of the Price or the sum of 1,000,000 (one million pounds). For the avoidance of doubt nothing in Clause 15, Clause 16, or this Clause 17 shall give rise to any liability to the Purchaser which the Seller would not have had save for those provisions.
18. Force Majeure
Without prejudice to Clause 7(b) the Seller shall not be liable for any loss, costs, claim, action and/or damage caused by the delay in the performance or non-performance of any of obligations hereunder where the same is occasioned by any cause whatsoever that is beyond the Seller's control, including but not limited to an Act of God, war, civil disturbance, requisition, government or parliamentary restrictions, prohibitions or enactment of any kind, import or export regulations, strikes, lockouts or trade dispute (whether involving its own employees or those of any other person) difficulties in obtaining workmen or materials, breakdown of machinery fire or accident. Should any such event occur the seller may cancel or suspend the Contract without incurring liability for any loss cost, expense, claim, action, and/or damage thereby occasioned.
Without prejudice to any other rights the Seller may have, the Seller shall be entitled, on giving written notice to the Purchaser, to terminate this Contract forthwith or on 14 days notice in the case of Clause 5 (d) and to demand immediate payment of any amount due or accruing due to the Seller hereunder and to retain any deposit if:
a) The Purchaser, not being a body corporate, becomes bankrupt or compounds or makes any arrangements with his creditors or commits any act of bankruptcy.
b) The Purchaser being a body corporate goes into liquidation, whether compulsory or voluntary (say for the purposes of amalgamation or reconstruction) or has a Receiver appointed of its undertaking or assets or any part thereof or makes a proposal for voluntary arrangement for a composition of debts or scheme of arrangement to be approved by the Receiver under Canadian law.
c) The Purchaser commits any breach of Clause 5 hereof or of its other obligations hereunder and after reasonable notice by the Seller fails to remedy such breach.
a) If any of these conditions or part of these conditions is rendered void by any mandatory rule of law, it shall be void to that extent and no further. If any of these conditions or any part of these conditions is rendered unenforceable by any mandatory rule of law it shall be unenforceable to the extent that it is not fair or reasonable to allow reliance on such a condition or part thereof but no further.
b) In the event of any inconsistency between the provisions of the specification, any special conditions and these conditions, then the Specification shall take precedence followed by any special conditions and then these conditions.
21. Disputes and Claims
a) The parties will attempt in good faith to resolve any dispute or claims arising out of or relating to this Contract promptly.
b) If the matter is not resolved through negotiation, the parties will attempt in good faith to resolve the dispute or claim through an Alternative Dispute Resolution (ADR) procedure.
c) If the matter has not been resolved by an ADR procedure within 28 days of the initiation of such procedure, or if either party will not participate in an ADR procedure, the dispute shall be referred to the English Courts subject to the rights of either party to enforce a judgement obtained in the Canadian Courts in any other jurisdiction.
Any notices given under this Contract shall be in writing (which shall include telex and fax) and be sent to the address specified by the party to whom it is sent and shall be deemed to have been received 72 hours after it had been sent.
Failure by the Seller to insist upon strict performance of the terms and conditions of this Contract shall not be deemed a waiver of any of its rights or remedies nor be deemed a waiver of any subsequent default hereof.
This Contract shall in all respects be governed and construed in accordance with Canadian Law.
The headings in these Conditions are intended for reference only and shall not affect their construction.