Please click HERE for a pdf of the Aerotech United Kingdom Standard Terms & Conditions of Sale.
Aerotech Ltd - Standard Terms & Conditions of Sale
1.1. In these Conditions:
“Buyer” means the person who accepts a quotation of the Seller for the sale of the Goods or Services or whose order for the Goods or Services is accepted by the Seller.
“Goods” means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions.
“Seller” means Aerotech Limited (registered in England under number 1548414).
“Services” means the services to be provided by the Seller in accordance with these Conditions of such type, at such times and at such locations as are described in the Specification Sheet.
“Specification Sheet” means the form issued by the Seller, containing details of the Goods and Services to be provided, including the start date and duration of the Services and other details relevant to the Contract.
“Conditions” means the standard terms and conditions of sale set out in this document and includes any special terms and conditions agreed in writing between the Buyer and the Seller.
“Contract” means the contract for the purchase and sale of the Goods and for the provision of Services (if applicable).
1.2. In these Conditions, the singular includes the plural and vice versa.
1.3. The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.4. References to the Services in these Conditions are only applicable if Services are referred to in the Specification Sheet.
2. Basis of sale and supply.
2.1. The Seller shall sell and the Buyer shall purchase the Goods and Services in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which 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, or any such order is made or purported to be made, by the Buyer.
2.2. No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
2.3. Any advice, recommendation or representation given or made by or on behalf of the Company concerning the Goods or their use or the Services which is not confirmed in writing by the Company is followed, acted or relied upon entirely at the Buyer’s own risk and the Seller shall not be liable for any such advice, recommendation or representation which is not so confirmed.
2.4. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, order acknowledgement, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. Orders and Specifications
3.1. No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Sellers authorised representative.
3.2. The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods or Services within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3. The quantity, quality and description of and any specification for the Goods and Services shall be those set out in the Sellers Specification Sheet.
3.4. If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Sellers use of the Buyers specification.
3.5. The Seller reserves the right to make any changes in the specification of the Goods as published by the Seller from time to time which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to the Sellers specification, which do not materially affect their quality or performance.
3.6. No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller 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 the Seller as a result of cancellation. In the case of custom or bespoke Goods, the Seller reserves the right to be paid a cancellation fee equal to the agreed price of those Goods.
4. Price and delivery of the Goods and Services.
4.1. The price of the Goods and Services shall be the Sellers quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Sellers published price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom, the Sellers published export price list shall apply. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2. The Seller reserves the right, by giving notice to the Buyer at any time before delivery or performance, to increase the price of the Goods or Services to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, 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 or Services which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3. Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to delivery of the Goods to other than at the Sellers premises, the Buyer shall be liable to pay the Sellers charges for transport, packaging and insurance.
4.4. The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
4.5. The cost of pallets and returnable containers will be charged to the buyer in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned undamaged to the Seller before the due payment date.
4.6. The Seller shall provide the Services set out in the Specification Sheet applicable to the Contract.
5.1. Where the Goods include software, the Buyer is granted a non exclusive licence to use the software solely for internal business purposes from the date of delivery of the Goods. The Buyer undertakes not to reverse compile or copy the software, save for copying for back up purposes and only then with the prior written consent of the Seller, Support for the software can be provided by the Seller, subject to the terms of its software support agreement.
6. Terms of payment.
6.1. Unless otherwise expressly agreed in writing, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer, or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods. The Seller shall be entitled to invoice the Buyer for Services at the end of each month in which Services are provided or on completion of the contracted Services, whichever occurs first.
6.2. The Buyer shall pay the price of the Goods and Services (less any discount to which the Buyer is entitled, but without any other deduction) within 30 days of the date of the Sellers invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
6.3. If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
6.3.1. cancel any discount allowed to the Buyer and invoice the Buyer for the difference in price, which invoice shall be payable within 7 days of its date;
6.3.2. cancel the Contract or suspend any further deliveries to or performance for the Buyer;
6.3.3. appropriate any payment made by the Buyer to such of the Goods and Services (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
6.3.4. charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of two per cent per annum above Lloyds TSB Bank plc 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).
7.1. Delivery of the Goods shall be made by the Buyer collecting the Goods at the Sellers premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
7.2. Any dates quoted for delivery of the Goods or performance of the Services are approximate only and the Seller shall not be liable for any delay in delivery of the Goods or performance of the Services howsoever caused. Time for delivery or performance shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
7.3. Where Goods are to be delivered other than at the Sellers premises, if the Goods are not delivered or on delivery are found to be damaged or short the Seller shall not in any event be liable unless the Buyer gives written notice to the Seller and to the carrier within 7 seven days of the expected delivery date and, in the case of short or damaged delivery, the Buyer gives the Seller a reasonable opportunity to inspect the Goods, in the same condition and location as when delivered.
7.4. Where the Goods are to be delivered in installments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
7.5. If the Seller fails to deliver the Goods for any reason other than any cause beyond the Sellers reasonable control or the Buyers fault, and the Seller is accordingly liable to the Buyer, the Sellers liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
7.6. If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyers reasonable control or by reason of the Sellers fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
7.6.1. store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
7.6.2. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
8. Risk and property
8.1. The risk of damage to or loss of the Goods shall pass to the Buyer:
8.1.1. in the case of Goods to be delivered at the Sellers premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
8.1.2. in the case of Goods to be delivered otherwise than at the Sellers premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
8.2. The Buyer shall keep the Goods fully insured against all risks normally insured against at least throughout the period from the passing of risk in the Goods until the passing of property in them.
8.3. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
8.4. Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods on a fiduciary basis as bailee for the Seller the Buyer shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Sellers property. Notwithstanding that the Goods (or any of them) remain the property of the Seller the Buyer may sell or use the Goods in the ordinary course of the Buyer’s business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller’s property by the Buyer on the Buyer’s own behalf and the Buyer shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Seller the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller’s money.
8.5. Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence, the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so immediately, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods. If this sub-clause is implemented, the Buyer shall cease to have the rights under sub-clause 7.4.
8.6. The Buyer shall not be entitled to pledge or in any way change by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8.7. The Seller shall be entitled to recover the price of the Goods (plus VAT) notwithstanding that property in any of the Goods has not passed from the Seller.
8.8. The Buyer shall promptly deliver the prescribed particulars of this Contract to the Registrar in accordance with the Companies Act 1985 Part XII as amended. Without prejudice to the other rights of the Seller, if the Buyer fails to do so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
9. Warranties and liability
9.1. Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of twelve months from delivery and the Services will be performed with reasonable care and skill.
9.2. The above warranty is given by the Seller subject to the following conditions:
9.2.1. it shall not apply to any computer software forming part of the Goods, which is subject to separate support terms;
9.2.2. the Seller shall be under no liability in respect of any defect in the Goods or Services arising from any drawing, design or specification supplied by the Buyer;
9.2.3. the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval;
9.2.4. the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods and Services has not been paid by the due date for payment,
9.2.5. the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
9.3. All warranty claims shall be subject to the terms of the Aerotech warranty and field service policy from time to time applicable (the “Policy”). In the event of conflict or inconsistency with these Conditions, the terms of (the Policy) will prevail.
9.3.1. Subject as expressly provided in these Conditions, [and except where the Goods are sold and Services provided to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1979)], all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.4. Where the Goods are sold or Services provided under a consumer transaction (as defined by the Sale of Goods Act 1979) the statutory rights of the Buyer are not affected by these Conditions.]
9.4.1. Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure or the failure of Services to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or performance or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered and the Services performed in accordance with the Contract.
9.4.2. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure or the failure of Services to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) or re-perform the Services free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods or Services (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
9.5. The Seller accepts liability for direct loss or damage of and loss of or damage to the tangible property of the Buyer caused by its negligence or breach of contract. subject to a limit of £100,000 for each event or omission or series of events or omissions causing substantially the same loss and an aggregate limit in any 12 month rolling period of (£1,000,000).
9.6. Except in respect of death or personal injury caused by the Seller’s negligence and liability for fraudulent misrepresentation, in respect of which the Seller’s liability shall not be limited, the Seller 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 the express terms of the Contract, for any loss of profit, contracts or goodwill or for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees 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, the supply of Services or otherwise relating to the performance or non-performance of the Contract by or on behalf of the Seller.
9.7. The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control.
10.1. if any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the UK patent, copyright, or trade mark of any other person, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that
10.1.1. the Seller is given full control of any proceedings or negotiations in connection with any such claim;
10.1.2. the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
10.1.3. except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld);
10.1.4. the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
10.1.5. the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and
10.2. without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause).
11.Insolvency of Buyer
11.1. This clause applies if:
11.1.1. the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
11.1.2. an encumbrancer takes possession of, or a receiver is appointed, in respect of any of the property or assets of the Buyer; or
11.1.3. the Buyer ceases, or threatens to cease, to carry on business; or
11.1.4. the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
11.2. If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries or performance under the Contract without any liability to the Buyer, and if the Goods have been delivered or Services provided but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
12.1. Unless otherwise agreed in writing, all patterns , drawings, plans, diagrams, tools, jigs and fixtures required for the performance of the Contract shall, notwithstanding any payment by the Buyer, at all times remain the property of the Seller.
12.2. The copyright and design rights in all drawings, instruction manuals and other documents prepared by the Seller for the Contract or otherwise shall remain the property of the Seller, shall be treated as confidential and shall not be disclosed copied or reproduced by the Buyer or any third party without the prior written consent of the Seller.
13.1. In these Conditions Inco terms means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Inco terms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Inco terms and these Conditions, the latter shall prevail.
13.2. Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 12 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
13.3. The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any taxes, including value added tax, duties thereon.
13.4. Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered FOB to the air or sea port of shipment and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
13.5. The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
13.6. Payment of all amounts due to the Seller shall be made by irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by a bank in London acceptable to the Seller or, such other means of payment as the Seller may specify, in relation to the Contract.
13.7. The Buyer undertakes not to offer the Goods for resale in any country notified by the Seller to the Buyer at or before the time the Buyer’s order is placed, or to sell the Goods to any person if the Buyer knows or has reason to believe that that person intends to resell the Goods in any such country.
14.1. The Seller is a member of the group of companies whose holding company is Aerotech Inc. and accordingly the Seller may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Seller.
14.2. Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
14.3. No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
14.4. The Buyer shall be solely responsible for and shall keep the Seller indemnified in respect of any loss, liability or exposure arising directly or indirectly from use of the Goods other than in accordance with the Seller’s operating instructions.
14.5. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
14.6. The Contract shall be governed by the Laws of England. The parties will seek to resolve disputes between them by alternative dispute resolution (ADR). If the parties fail to agree within 60 days of the initiation of the procedure (or if either party will not participate in ADR), the dispute shall be referred to the exclusive jurisdiction of English Courts.
14.7. The Buyer shall not assign this Contract or any of its rights under it without the prior written consent of the Seller.
14.8. Each party shall comply with the provisions of the Data Protection Act 1998 in relation to the processing of any personal data.
14.9. Except where expressly stated to the contrary, no person who is not a party to the Contract has or shall have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce the Conditions of this Contract and no consent of any third party shall be required to any variation of the Conditions.