THERMALCOMP LIMITED

STANDARD TERMS AND CONDITIONS FOR THE SUPPLY OF GOODS

 

The customer’s attention is drawn in particular to the provisions of clause 8.

1.               Interpretation

1.1            Definitions:

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Commencement Date: the date the Contract commences, as set out in the Order.

Conditions: these terms and conditions set out in clause 1 to clause 11 (inclusive).

Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: the person or firm who purchases the Goods from the Supplier.

Force Majeure Event: events, circumstances or causes beyond a party’s reasonable control.

Goods: the goods (or any part of them), as set out in the Order.

Order: an order for the Goods submitted by the Customer, as may be set out in the Customer’s purchase order form or in acceptance to the Supplier’s quotation, as the case may be.

Price: the price for the Goods, as set out in the Order.

Specification: any specification for the Goods, including any related plans and drawings that are agreed in writing by the Customer and the Supplier.

Supplier: Thermalcomp Limited (registered in England and Wales with company number 09361325).

Interpretation:

(a)         a reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;

(b)         any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and

(c)         a reference to writing or written includes fax and emails.

1.               Basis of contract

1.1            These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. All supplies of Goods by the Supplier are subject to these Conditions which shall apply to the exclusion of any terms or conditions whatsoever whether express, implied by law or otherwise. These Conditions apply to and form part of the Contract between the Customer and the Supplier (and shall, for the avoidance of doubt, form part of every contract for sale of Goods entered into between the parties). The Customer’s placing of an Order shall be deemed its acceptance of these Conditions. These Conditions supersede any previously issued terms and conditions of purchase or supply. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with, or contained in any documents of the Customer that is inconsistent with these Conditions.

1.2            Each Order by the Customer to the Supplier shall be an offer to purchase the Goods subject to these Conditions.

1.3            The Supplier may accept or decline Orders at its absolute discretion. An Order shall not be accepted and no binding obligation to supply any Goods shall arise, until the earlier of:

(a)         The Supplier’s written acceptance of the Order; or

(b)         The Supplier dispatching the Goods.

1.4            The Supplier may, at its sole discretion, accept an amendment to an Order by the Customer.

1.5            The Supplier shall assign an order number to each Order it accepts and notify the order number to the Customer. Each party shall use the relevant order number in all subsequent correspondence relating to the Order.

1.6            After confirming an Order, the Supplier shall as soon as is practicable inform the Customer of the Supplier’s estimated delivery date (Delivery Date) for the Order. This will be subject to change at the sole discretion of the Supplier.

1.7            The Customer is responsible for ensuring that Orders and any applicable Specification is complete and accurate. The Customer shall give the Supplier all necessary information that the Supplier reasonably requires in order to fulfil each Order.

1.8            No Order which has been accepted by the Supplier may be cancelled by the Customer except with the agreement in writing by the Supplier. Any returns of Goods following Delivery may only be returned if agreed with the Supplier.

1.9            The Supplier may issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply the Goods and are incapable of being accepted by the Customer.

2.               The Goods

2.1            Any samples, drawings, images, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s website, catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.

2.2            To the extent that the  Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification. This clause 2.2 shall survive termination of the Contract.

2.3            The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.

3.               Delivery

3.1            The Supplier shall ensure that each delivery of Goods is accompanied by a delivery note which shows the order number, description and quantity of Goods, special storage instructions (if any) and, if the relevant Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.

3.2            The Supplier shall deliver the Goods to the location set out in the Order or other such location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.

3.3            The Goods shall be deemed delivered on the completion of unloading of the Goods at the Delivery Location.

3.4            Delivery Dates are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of any Goods that is caused by:

(a)         a Force Majeure Event; or

(b)         the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

3.5            The Supplier shall endeavour to deliver Goods to the Delivery Location on the relevant Delivery Date. In relation to the Delivery Location, the Customer must clearly specify the place of destination with sufficient precision in the Order.

3.6            If the Supplier fails to deliver Goods by the relevant Delivery Date, it shall arrange an alternative delivery date as soon as reasonably practicable, however it shall have no further liability to the Customer. The Supplier shall have no liability for any failure to deliver Goods to the extent that such failure is caused by:

(a)         a Force Majeure Event; or

(b)         the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

3.7            If 10 Business Days after the day on which the Supplier attempted to make delivery of Goods the Customer has not taken delivery of or collected those Goods, the Supplier may resell or otherwise dispose of part or all of the Goods.

3.8            The Supplier may deliver Orders by instalments, which shall be invoiced and paid for separately. The Customer may not cancel an instalment because of any delay in delivery or defect in another instalment.

3.9            The Customer is responsible for obtaining, as its own cost, such import licences and other consents in relation to the Goods as are required from time to time and, if required by the Supplier, the Customer shall make those licences and consents available to the Supplier prior to the relevant shipment.

4.               Quality of goods

4.1            The Supplier gives no warranty or guarantee and makes no representations as to the quality, description or fitness for purpose of the Goods whatsoever.

4.2            Following Delivery, the Customer must inspect the Goods. If following Delivery there are any damages or defects in the Goods, an incorrect quantity of Goods has been received or anything other than the Goods ordered have been received, the Customer must notify the Supplier within 3 Business Days of receipt. Where no such notification is made in accordance with this clause, the Goods shall be deemed to have been accepted in all respects by the Customer.

4.3            If the Customer gives notice in writing in accordance with clause 4.2, the Supplier shall be given a reasonable opportunity to examine the Goods and shall, at its option, repair or replace any Goods that are found to be defective or otherwise not in accordance with the Customer’s Order, or refund the price of such Goods in full.

4.4            The Supplier shall not be liable for any faults found in respect of the Goods if:

(a)         the Customer makes any further use of such Goods after giving notice of defects in accordance with clause 4.3;

(b)         the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

(c)         the defect arises as a result of the Supplier following any drawing, design or Specification (if applicable) supplied by the Customer;

(d)         the Customer alters or repairs such Goods without the written consent of the Supplier;

(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 differ from their description or the Specification (if applicable) as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

4.5            The Supplier’s only liability to the Customer in relation to the Goods is as set out in this clause 4.

4.6            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.

4.7            The terms of the Contract shall apply to any repaired or replacement Goods supplied by the Supplier.

5.               Title and risk

5.1            Risk in Goods shall pass to the Customer at the time of unloading of the Goods at the Delivery Location, or if the Customer wrongfully takes delivery of the Goods, the time when the Supplier has tendered the delivery of the Goods.

5.2            Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the title to Goods shall only pass to the Customer once the Supplier receives payment in full (in cash or cleared funds) for them. The Customer may not resell or use the Goods in the ordinary course of its business before the Supplier receives payment for the Goods.

5.3            Until title to the Goods has passed to the Customer, the Customer shall:

(a)         store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;

(b)         not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

(c)         maintain the Goods in good and satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

(d)         notify the Supplier immediately if it becomes subject to any of the events listed in  clause 9.1(b); and

(e)         give the Supplier such information relating to the Goods as the Supplier may require from time to time.

5.4            The Supplier may recover Goods in which title has not passed to the Customer. The Customer irrevocably licenses the Supplier, its officers, employees and agents, to enter any premises of the Customer (including with vehicles), in order to satisfy itself that the Customer is complying with the obligations in clause 5.3, and to recover any Goods in which property has not passed to the Customer.

5.5            The Supplier may at its sole discretion at any time after delivery elect to transfer title in the Goods to the Customer, in which case the Customer shall immediately pay the Price to the Seller.

6.               Product recall

6.1            If the Customer is the subject of a request, court order or other directive of a governmental or regulatory authority to withdraw any Goods from the market (Recall Notice) it shall immediately notify the Supplier in writing enclosing a copy of the Recall Notice.

6.2            Unless required by law, the Customer may not undertake any recall or withdrawal without the written permission of the Supplier and only then in strict compliance with the Supplier’s instructions as to the process of implementing the withdrawal.

7.               Price and payment

7.1            The Customer shall pay for Goods in accordance with this clause 7.

7.2            The Price excludes:

(a)         the costs of packaging, insurance and transport of the Goods which shall be invoiced to the Customer in addition to the Price; and

(b)         amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate (if applicable), subject to the receipt of a valid VAT invoice.

7.3            The Supplier may invoice the Customer for the price of Goods plus VAT at the prevailing rate (if applicable) on or at any time after it confirms the relevant Order to the Customer. The Supplier shall ensure that the invoice includes the date of the Order, the invoice number, the Customer’s order number, the Supplier’s VAT registration number, and any supporting documentation that the Customer may reasonably require.

7.4            Unless otherwise agreed in writing, the Customer shall pay invoices in full and cleared funds upon receipt of the Supplier’s invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time for payment is of the essence.

7.5            If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then, without limiting the Supplier’s remedies under clause 8.3(b):

(a)         the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank Plc’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 Customer shall pay the interest together with the overdue amount.

(b)         the Supplier may suspend all further deliveries of Goods until payment has been made in full.

7.6            The Customer shall pay all amounts due under the contract in full without set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any of its other rights or remedies, set off any amount owing to it against any amount payable by the Supplier to the Customer.

8.               Limitation of liability

8.1            Nothing in this Contract shall limit or exclude the Supplier’s liability for:

(a)         death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);

(b)         fraud or fraudulent misrepresentation;

(c)         breach of the terms implied by section 12 of the Sale of Goods Act 1979; or

(d)         any matter in respect of which it would be unlawful for the Supplier to exclude or restrict liability.

8.2            The Customer warrants that it will undertake its own investigation to satisfy itself that the Goods will be fit for any purpose intended by the Customer. For the avoidance of doubt, the Supplier shall have no liability whatsoever for how the Goods are used.

8.3            Subject to clause 8.1:

(a)         the Supplier shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise for any of the following (whether direct or indirect) under or in connection with the Contract:

i.              loss of revenue;

ii.               loss of profit;

iii.               loss of business;

iv.              loss of business opportunity;

v.               loss of product;

vi.              loss of savings, discount or rebate (whether actual or anticipated);

vii.               loss of data;

viii.               loss of use;

ix.              harm to reputation or loss of goodwill;

x.               direct, indirect or consequential loss;

xi.              costs, expenses or other claims for consequential compensation (however arising); and

(b)         the Supplier’s total liability to the Customer for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, in relation to the Contract, shall be limited to the price of the Goods supplied under the Order in respect of which the liability arises.

9.               Termination

9.1            Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice if:

(a)         the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;

(b)         the Customer 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 Customer suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d)         the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.

9.2            Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Supplier and the Customer if the Customer becomes subject to any of the events listed in clause 9.1(b) to 9.1(d), or if the Supplier reasonably believes that the Customer is about to become subject to any of them.

9.3            Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment.

9.4            Without affecting any other right or remedy available to it, the Supplier may terminate this agreement on giving not less than 1 months’ written notice to the Customer.

9.5            On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest.

9.6            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 which existed at or before the date of termination.

9.7            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.

10.            Multi-tiered dispute resolution procedure

10.1          If a dispute arises out of or in connection with this agreement or the performance, validity or enforceability of it (Dispute) then except as expressly provided in this agreement, the parties shall follow the procedure set out in this clause:

(a)         either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documents. On service of the Dispute Notice, the Customer and the Supplier shall attempt in good faith to resolve the Dispute;

(b)         if the Customer and Supplier are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the chief executives (or equivalent) of each party who shall attempt in good faith to resolve it; and

(c)         if the chief executives (or equivalent) of each party for any reason are unable to resolve the Dispute within 30 days of it being referred to them, the matter shall be referred to mediation in accordance with the London Court of International Arbitration Mediation Rules (LCIA) on the application of either party. Unless otherwise agreed between the parties, the mediator shall be nominated by LCIA. To initiate the mediation, a party must serve notice in writing (ADR notice) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to LCIA. The mediation will start not later than 7 days after the date of the ADR notice.

10.2          The commencement of mediation shall not prevent the parties commencing or continuing court proceedings in relation to the Dispute under Clause 11.10 (Jurisdiction) which clause shall apply at all times.

10.3          If the Dispute is not resolved within 20 days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 20 days, or the mediation terminates before the expiration of the said period of 20 days, the Dispute shall be finally resolved by the courts of England and Wales in accordance with clause 11.10 (Jurisdiction). The parties may by written agreement agree to extend the dates set out in this clause 10.3.

11.            General

Force majeure. The Supplier shall not be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event.

11.1          Assignment and other dealings.

(a)         The Customer shall 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 Supplier.

(b)         The Supplier may at any time assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights under this Contract.

11.2          Confidentiality.

(a)         Each party undertakes that it shall not at any time 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 11.2(b). For the purposes of this clause, 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.

(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 11.2; 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 Contract.

11.3          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.

11.4          Variation.  No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

11.5          Waiver. 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.

11.6          Severance. 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.

11.7          Notices.

(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 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, or sent by pre-paid first class post or other next working day delivery service, commercial courier, fax 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 11.7(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 fax or 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.

11.8          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.

11.9          Governing law. This 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 England and Wales.

11.10       Jurisdiction. Each party irrevocably agrees that the courts of England and Wales 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.