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STANDARD TERMS AND CONDITIONS OF SALE
BARTEC TECHNOLOGIES LIMITED
The following terms used herein shall have meaning as stated: "Seller" means Bartec Technologies Limited: "Purchaser" means any person, firm, company or other organisation who is the addressee of any quotation, acceptance of order or other communication which is subject to these conditions: "Equipment" means the product, articles or other items which are the subject of any quotation, acceptance of order, or other communications issued by the Seller.
All quotations are made and all orders are accepted by the Seller subject only to the terms and conditions set forth herein and overleaf, which shall prevail notwithstanding any other terms and conditions which the Purchaser shall bring to the Sellers notice, and any change thereto shall have force only if agreed by the Seller in writing. The Seller reserves the right to accept or refuse orders. The placing of an order following a quotation given by the Seller shall not be binding on the Seller unless and until accepted by the Seller in writing.
The Equipment shall conform to the Sellers applicable specifications and drawings in force at the date of order unless otherwise specified. However any deviation that does not affect materially the performance or utility of the Equipment shall not invalidate any contract or be made the basis of any claim against or liability of the Seller. Any patent copyright and design in any plans, drawings, specifications, data, estimates and other information which the Seller shall provide to the Purchaser shall remain the Seller's property. No contract governed by these conditions shall be a Sale by sample unless the Seller expressly agrees in writing.
a) The prices contained in any quotation or price list are based on conditions ruling at the date thereof. If any increase howsoever arising in the cost of the Equipment including but without being limited to any increase in the costs of manufacture or raw material, labour or transport occurs after such date, the Seller shall be entitled (subject to any statute or regulation) to make such additions to the contract price as shall be reasonable in the circumstances.
b) Unless otherwise stated the price for the Equipment includes the provision of standard packing.
c) Unless expressly stated otherwise in writing, prices quoted do not include Value Added Tax, which where appropriate, shall be charged at the rate ruling the date of supply.
d) With respect to quotations for the supply of Equipment to a Purchaser other than within the United Kingdom prices are quoted F.O.B. UK and exclude any other costs, including any local taxes, unless expressly stated otherwise in writing by the Seller.
e) The Purchaser shall not be entitled to make any deduction from the price in respect of any set off or counter claim.
a) The Seller warrants that the Equipment supplied shall be free from defects in material and workmanship arising under normal use and service for such period of time commencing with effect from the date of first delivery as the Seller shall notify in writing to the Purchaser ("the Warranty Period").
b) The said Warranty shall not apply to any part of the Equipment which can reasonably be deemed expendable or which in the process of normal use and service could require to be replaced before the expiry of the Warranty Period, including but not limited to fuses, bulbs, and air filters.
c) Failures which occur as a result of misuse or abuse on the part of the Purchaser shall not be covered under this warranty.
d) The Seller's liability under the said warranty shall be limited to the repair or replacement, at it's option, of any part of any Equipment found to be defective within the Warranty Period and notified to the Seller in writing within (14) days of its first discovery. The Seller shall make no charge for any materials used effecting any repair or replacement under the said warranty. The Seller reserves the right to invoice the Purchaser for labour time (at the Sellers current billable rate), incurred expenses, in the event of a warranty claim which is found to be subsequently unfounded as determined by the Seller in its sole discretion.
e) If any Equipment or part thereof shall be altered, modified or added to by other than the Seller without the prior written authorisation of the Seller, then the above warranty will not extend to any defect in such Equipment or part thereof which reasonably can be attributed to such alteration, modification.
6. EXCLUSION OF LIABILITY.
a) The Purchaser is relying on its own skill and judgement in relation to the suitability and compatibility of the Equipment supplied under this contract and the Seller accepts no liability whatsoever for any knowledge it or its servants or agents may possess as to the purpose for which the equipment is supplied.
b) Save as provided in condition 5 above and in section 12 of the Sale of Goods Act 1979 all conditions, warranties and liabilities whatsoever, whether express or implied, Statutory or otherwise, are hereby expressly excluded, and the Seller shall be under no liability for any loss or damage of whatsoever kind, howsoever caused or arising, including but without being limited to any indirect or consequential loss or damage (save for death or personal injury caused by the Seller's proven negligence).
c) Where the Purchaser makes a claim against the Seller in respect of Equipment contained in any delivery such claim shall not entitle the Purchaser to reject the balance of equipment and each delivery or part thereof shall be deemed to be a separate contract.
7. LOSS OR DAMAGE IN TRANSIT.
Claims for damages or shortages must be notified, in writing to the Seller within (5) working days of the date of delivery. Failure to notify the Seller within the above time limit may result in any claim falling outside the Sellers responsibility.
The Seller shall be entitled to render its invoices to the Purchaser for any Equipment supplied under contract concurrent with the delivery of the same, notwithstanding that such delivery may be delivery in part of any Purchasers purchase order. The Purchaser shall pay the full amount of any invoice so rendered, without deduction of any sort, no later than (30) days after the date of invoice ('the due date') notwithstanding any other payment terms offered by the Seller to the Purchaser including in the Seller's written quotation. All payments shall be made by the date as a condition precedent to any future deliveries. Any failure by the Purchaser to pay any invoice by the due date shall entitle the Seller, at its option, to charge the Purchaser interest on any sum due and unpaid from the due date until payment is actually received by the Seller in full together with any accrued interest, at a rate of three per cent (3% per month and/or treat the contract to purchase Equipment as repudiated by the Purchaser without prejudice to any right to damage which the Seller may have.
9. TITLE AND RISK; EQUIPMENT.
a) Although a binding contract for the sale of Equipment is formed when an order
(whether written or oral) is accepted by the Seller, the ownership of the Equipment
specified in any invoice shall remain with the Seller until both (i) full payment
for the Equipment has been received by the Seller and (ii) all sums owing and due
to the Seller by the Purchaser have been discharged. Until conditions (i) and (ii)
have been fulfilled by the full payment of whatsoever is owed to the Seller, the
Seller reserves the right of disposal of the Equipment in question in accordance
with section 19 of the Sale of Goods Act 1979, the Purchaser shall hold such Equipment
as bailee, and if so required by the Seller the Purchaser shall store and segregate
such equipment in such a way that they can be identified as the property of the
Seller. If before such conditions have been met the Purchaser re-
b) Risk in the Equipment shall pass to the Purchaser when the Equipment is delivered
10. DESTINATION CONTROL.
a) Concerning any equipment or parts thereof and/or technical data related thereto originating in the U.S.A. the Purchaser is required to comply with the requirements of the U.S. Department of Commerce Export Administration Regulations of the time being in force and obtain as necessary the prior written consent of the U.S. Department of Commerce before exporting any such Equipment or part thereof and/or related technical data from the United Kingdom, or such other country into which it was first imported as the case may be.
THE PURCHASER SHALL BE SOLELY RESPONSIBLE FOR OBTAINING WRITTEN CONSENT AS AFORESAID BEFORE EXPORTING EITHER DIRECTLY OR INDIRECTLY, ANY EQUIPMENT OR PARTS THEREOF OR RELATED TECHNICAL DATA FROM SUCH COUNTRY OF ULTIMATE DESTINATION.
a) The Seller shall be entitled to make partial deliveries or deliveries by instalments and these conditions shall apply to each such delivery. Each delivery shall be deemed to be a separate contract and failure to effect any delivery shall not vitiate the contract as to other deliveries.
b) The Seller shall be entitled to make an additional charge and/or a price adjustment if a delivery programme is varied at the request of the Purchaser.
c) The trade terms used herein shall be governed by the provisions of "Incoterms 1953" as issued by the International Chamber of Commerce. The Seller's obligation to deliver any order shall be deemed fulfilled upon delivery in accordance with the applicable trade terms.
12. ORDER CANCELLATION.
a) Any order which has been acknowledged by the Seller, which is subsequently cancelled,
by the Purchaser shall be subject to a cancellation charge in line with any charges
which the Seller will incur as a result of the cancellation of any corresponding
order which the Seller has placed with its own suppliers. In the event that the
Seller is able to re-
b) The Purchaser shall pay any cancellation charges or other amounts as aforesaid on those terms as defined by (8) above.
13. EXCHANGE RATE ADJUSTMENT.
a) The Seller shall notify the Purchaser when any particular contract price expressed in a certain currency is established by the conversion of another currency at a certain rate of exchange, giving details of such other currency and the applicable rate of exchange. ("the Basic Rate").
b) If on the date of any applicable invoice the actual rate of exchange then prevailing differs from the Basic Rate by two per cent (2%) or more the Seller shall be entitled to adjust the contract price and the amount of such invoice accordingly and the Purchaser shall pay the same unless expressly stated, by the Seller, in writing otherwise.
14. BREACH AND PURCHASER'S INSOLVENCY.
If the Purchaser shall default in or commit any breach of any of its obligations to the Seller or if any distress or execution shall be levied upon the Purchaser or if the Purchaser shall enter into any negotiations for arrangement or composition with its creditors or commit any act of bankruptcy or if any petition in bankruptcy shall be presented against it or, if the Purchaser is a corporate body, any resolution is proposed or petition presented against it or, if the Purchaser is a corporate body, any resolution is proposed or petition presented to wind up the Purchaser or if a receiver of the Purchaser's assets or undertaking or any part thereof shall be appointed, any contract than subsisting forthwith, automatically shall be determined without prejudice to any other claim or right the Seller might make or exercise.
15. GENERAL PROVISIONS.
a) FORCE MAJEURE
The Seller shall not incur liability for failure to perform any obligation under any contract if such failure is the direct result of anything beyond the Seller's control, including (without prejudice to the general foregoing) any ACT of GOD; refusal, failure to grant suspension or withdrawal of any license or consent or other omission of any governments; fire, explosion, flood, breakdown of machinery; strikes, lockouts, labour disputes, shortage of materials, fuel components of transport facilities; war, civil commotion, insurrection.
Any failure by the Seller to enforce any of these conditions shall not constitute a waiver or affect its right to require the future performance thereof, nor shall its waiver of any breach of these conditions constitute a waiver of any subsequent breach or nullify the effectiveness of any such conditions.
Any notice to be given by the Seller shall be deemed to be given upon its being posted or sent by fax to the Purchaser's registered office, or in the case of individual or firm to the last known address.
The Purchaser shall not assign or transfer or purport to assign or transfer any contract to which those conditions apply or the benefit thereof to any person whatsoever.
Delivery estimates are quoted in good faith and every endeavour will be made by the Seller to meet the dates quoted, however in no circumstances whatsoever shall the Seller be liable in the event that delivery occurs which are the result of causes beyond the Seller's control.
f) EQUIPMENT SPECIFICATION
The Seller reserves the right to vary specifications of Equipment with prior notification to the Purchaser.
g) COST OF TRANSPORT
The Seller reserves the right to charge the Purchaser for any special delivery arrangements required by the Purchaser.
h) SMALL ORDER SURCHARGE
The small order surcharge of £5 (five pounds) or such reasonable charge as may be applied by the Seller in its sole discretion from time to time, will be made in respect of any order up to the value of £50 (fifty pounds) or such other limit as the Seller may apply from time to time, calculated on the invoice price exclusive of VAT.
16. AGENCY CHARGES.
Where the Seller elects to employ the services of any agent to recover monies due to it pursuant hereto, the Seller shall be entitled to recover the costs thereof in full, from the Purchaser.
17. COPYRIGHT AND TRADEMARKS.
a) Copyright exists in all equipment issued or distributed by the Seller. The Equipment is supplied by the Seller for use solely by the Purchaser. Any unauthorised Copying of the Equipment would be an infringement of copyright and the infringer may be liable to action in law.
b) The Seller, its clients and its licensees are the proprietors and/or the properly licensed users of registered trademarks under which the Equipment is marketed and/or distributed by them and any infringement of these trademarks may also result in legal proceedings.
18. USER LICENSING AGREEMENT.
Where the Equipment supplied to the Purchaser is in the form of, or includes, computer software products ("Software") in source and/or binary form then, unless otherwise expressly excluded, by the Seller, in writing, the Purchaser shall sign, and agree to be bound by, the terms and conditions contained therein, a USER SOFTWARE LICENSING AGREEMENT, within (7) days of being requested to do so, in writing, by the Seller.
19. GOVERNING LAW.
Any contract in all respects shall be governed by and construed in accordance with provisions of English Law.
The headings of these conditions are for convenience only and shall have no effect on the interpretation thereof.