1. DEFINITIONS
"Buyer means the person, firm, company or corporation by whom the order is given. "Contract means the written agreement made between Buyer and Seller for the supply of the Goods. "Contract Price” means the price payable to Seller by Buyer for the Goods. "Goods" means the goods (and/or services if any) described in the Contract. "Seller means InSink-Erator, a division of Emerson Electric U.K. Limited (company number 00855587). "Seller Affiliate' means any of Seller's subsidiaries, holding companies and any subsidiaries of such holding companies as defined in Sections 736 and 736A of the Companies Act 1985 (referred to together with the Seller as the "Seller's Group") and any person in whom the Seller's Group directly or indirectly owns or controls securities carrying 50% or more of all voting rights (being the right to vote at general meetings). "Terms and Conditions" means the terms and conditions set out in this document. All references to "including" mean 'including without limitation and without prejudice to the generality of the previous term'. "EXW", "FCA", "CPT" and any other delivery terms used in the Contract shall have the meaning ascribed to them in the then current version of INCOTERMS.
2. The CONTRACT
2.1 All orders must be in writing and are accepted subject to these Terms and Conditions. No terms or conditions put forward by Buyer and no representations, warranties, guarantees or other statements that are not either expressly contained in these Terms and Conditions or are otherwise expressly agreed in writing by Seller to form part of the Contract shall be binding on Seller.
2.2 The Contract shall become effective only upon the date of acceptance of Buyer's order in Seller's acknowledgement of order note (or if no acknowledgement of order is issued when Seller otherwise accepts Buyer's order) or the date of fulfilment of all conditions precedent stipulated in the Contract, whichever is the later (the "Effective Date").
2.3 No alteration or variation to the Contract shall apply until agreed in writing by both parties. However, Seller reserves the right to: (a) effect minor modifications and/or improvements to the Goods; or (b) make any changes that it may consider are required to comply with health and safety or other laws and regulations before delivery.
2.4 Seller reserves the right to change its standard terms and conditions of sale at any time without prior notification.
2.5 These Terms and Conditions are the only terms on which Seller is prepared to deal with Buyer and they will govern the Contract and all of Seller's future supplies to Buyer. No terms, conditions or warranties endorsed upon, delivered with, referred to or stipulated or contained in any purchase order or other similar document delivered or sent by Buyer to Seller will form part of the Contract.
3. VALIDITY OF QUOTATION AND PRICES
3.1 Seller shall be entitled by notice to Buyer at any time before delivery to increase the price of the Goods to reflect any increase in cost to Seller which is due to any factor beyond its reasonable control (including foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in costs of labour, materials or other costs of manufacture and the acts or omissions of Buyer).
3.2 Unless previously withdrawn or varied by notice to Buyer, any quotation given by Seller is open for acceptance within the period stated therein or when no period is so stated within thirty days after its date of issue. Where no quotation is issued the Contract Price shall be Seller's list price for the Goods concerned as at the date on which Seller accepts Buyer's order.
3.3 Subject to the remainder of these Terms and Conditions, prices are firm for delivery within the period stated in Seller's quotation (if any) and are exclusive of (a) Value Added Tax; (b) all other taxes, duties, levies or other similar charges arising in connection with the Contract; (c) packaging, freight, insurance and handling and calculated on the basis of delivery EXW (ex-works) Seller's shipping point. Packing materials are non-returnable and Buyer shall ensure that they are properly disposed of in accordance with all applicable laws and regulations.
4. PAYMENT
Buyer shall make payment in full without set-off, counterclaim or withholding of any kind (save where and to the extent that this cannot by law be excluded) in the currency specified by Seller within thirty days of the end of the month with which the invoice is dated and time shall be of the essence to this obligation. Goods will be invoiced at any time after their readiness for collection has been notified to Buyer or the Goods have been despatched, whichever is the earlier. Services will be invoiced monthly in arrears or, if earlier, upon completion. Without prejudice to Seller's other rights, Seller reserves the right to charge interest on any overdue sums at 4% above the base lending rate of the National Westminster Bank plc (or such higher rate stipulated by applicable law) from the due date for payment until the overdue amount is paid in full. Where Buyer is in breach of Contract or any other contract with Seller or any Seller Affiliates then Seller is entitled to suspend performance of the Contract (including withholding shipment) until the breach is remedied
5. DELIVERY PERIOD
5.1 Unless otherwise stated by Seller in writing, all periods stated for delivery or completion run from the Effective Date and are to be treated as estimates only not involving any contractual obligations. Time shall not be of the essence to any of Seller's delivery obligations.
5.2 If Seller is delayed in or prevented from performing any of its obligations under the Contract due to the acts or omissions of Buyer or its agents (including failure to provide specifications and/or fully dimensional working drawings and/or such other information as Seller reasonably requires to proceed expeditiously with its obligations under the Contract), the delivery/completion period and the Contract Price shall both be adjusted accordingly.
5.3 If delivery is delayed due to any act or omission of Buyer, or if having been notified that the Goods are ready for despatch, Buyer fails to take delivery or provide adequate shipping instructions, Seller shall be entitled to place the Goods into a suitable store at Buyer's expense. Upon placing the Goods into the store, delivery shall be deemed to be complete, risk in the Goods shall pass to Buyer and Buyer shall pay Seller accordingly.
6. FORCE MAJEURE
6.1 The Contract (other than Buyer's obligation to pay all sums due to Seller in accordance with the Contract) shall be suspended, without liability, in the event and to the extent that its performance is prevented or delayed due to any circumstance beyond the reasonable control of the party affected, including Act of God, war, armed conflict or terrorist attack, riot, fire, explosion, accident, flood, sabotage; governmental decisions or actions (including prohibition of exports or re-exports or the failure to grant or the revocation of applicable export licences), labour trouble, strike, lockout or injunction. Seller shall have no obligation to supply any goods or services (including technology or information) unless and until it has received any necessary licences or authorisations or has qualified for general licenses or license exceptions under applicable import, export control and sanctions laws, regulations, orders and requirements, as they may be amended from time to time (including those of the United States, the European Union and the jurisdiction in which Seller is established or from which the items are supplied). If for any reason any such licences, authorisations or approvals are denied or revoked, or if there is a change in any such applicable laws, regulations, orders or requirements that would prohibit Seller from fulfilling the Contract, or would in the reasonable judgement of Seller otherwise expose Seller and/or Seller Affiliate(s) to a risk of liability under applicable laws, regulations, orders or requirements, Seller shall be relieved without liability of all obligations under the Contract.
6.2 If either party is delayed or prevented from performance of its obligations for reasons described in this Clause for more than 180 consecutive calendar days, either party may terminate the then unperformed portion of the Contract by notice in writing given to the other party, without liability provided that Buyer shall be obliged to pay the reasonable cost and expense of any work in progress and to pay for all Goods delivered as at the date of termination.
7. DELIVERY, RISK & TITLE
7.1 Goods will be delivered EXW Seller's works and delivery to a carrier shall be treated as delivery to Buyer and where Seller arranges for carriage it shall be treated as having done so as agent for Buyer. Risk in the Goods shall pass to Buyer as soon as the Goods are despatched from or made available for collection at Seller's works, even if transportation costs are paid by Seller and Buyer shall insure against all risks from that point. Any freight, packing and handling costs paid by Seller will be recharged at Seller's standard rates. If it is expressly stated in the Contract that Seller is responsible for the insurance of the Goods after their delivery to any carrier, such insurance will be recharged at Seller's standard rates,
7.2 Seller may deliver by instalments and if so each delivery shall constitute a separate contract and failure by Seller to deliver any one or more of the instalments in accordance with their terms shall not entitle Buyer to terminate the whole Contract or treat it as repudiated.
7.3 Until the Contract Price has been paid in full to Seller, the Goods shall remain Seller's property.
7.4 Until such time as property in the Goods passes to Buyer, Buyer shall hold the Goods as Seller's fiduciary agent and keep the Goods separate from those of Buyer and any third parties and properly stored, protected and insured and identified as Seller's property. Until that time Buyer shall be entitled to resell or use the Goods in the ordinary course of its business (but any such resale shall be made by Buyer as principal and not as agent for Seller).
7.5 Until the property in the Goods passes to Buyer (and provided the Goods are still in existence and have not been resold), Seller shall be entitled at any time to require Buyer to deliver up the goods to Seller and, if Buyer fails to do so immediately, to enter upon any premises where the Goods are stored and repossess the Goods.
7.6 Buyer shall not be entitled to pledge or in any way charge by way of security or otherwise any of the Goods which remain the property of Seller.
7.7 Buyer shall inspect the Goods on delivery and immediately notify Seller of any shortfall, incorrect delivery or defects that would be apparent on inspection. No claims for shortfalls, incorrect delivery or for defects that would have been apparent on inspection may be made more than 5 working days after delivery
8. DEFECT AFTER DELIVERY
8.1 Seller warrants that subject to the rest of the Contract (i) it transfers good title to and the unencumbered use of the Goods; and (ii) services provided by Seller will be performed with all reasonable skill, care and due diligence and in accordance with good engineering practice; and (iii) on delivery the Goods are of satisfactory quality and where the Contract includes a description or specification that they comply, subject to Clause 2.3, in all material respects with such description or specification.
8.2 Seller will make good, by repair or at Seller's option by the supply of replacement parts, any defects which, under proper use, care and maintenance, appear in Goods of Seller's or Seller's Affiliates' manufacture which are supplied under the Contract and which are reported to Seller within (i) the warranty period specified in Seller's price list, product brochures and international section of its website at www.insinkerator.com (as all are amended from time to time); or (ii) where no such warranty is specified for the Goods concerned within 24 calendar months (90 days for consumables and spare parts) after their delivery (the "Warranty Period") and which arise solely from faulty materials or workmanship provided always that defective items are returned to Seller's service centre carriage and insurance prepaid within the Warranty Period. Replaced items shall become the property of Seller. Repaired or replacement items will be delivered or made available for collection on the same terms as the original Goods. Seller will correct defects in services provided by Seller and which are reported to Seller within 90 days after completion of such services. Goods repaired, replaced or corrected in accordance with this Clause shall be subject to the foregoing warranty for the unexpired portion of the Warranty Period or for 90 days from the date of their return to Buyer (or completion of correction in the case of services), whichever expires later.
8.3 Buyer agrees to comply with Seller's standard returns procedure in respect of all claims (details of which are available from the Seller on request). No claim can be considered until the Goods have been returned to, and examined by, Seller or its agent in accordance with Seller's returns policy and Seller shall not be liable for any claim where Buyer fails to comply with this policy.
8.4 Goods and services sourced by Seller from third parties other than Seller Affiliates for resale to Buyer shall carry only the warranty extended by the original manufacturer and Seller's liability in connection with them shall not in any event exceed that undertaken by the third party supplier concerned to Seller.
8.5 Notwithstanding Clauses 8.1 to 8.4 inclusive, Seller shall not be liable for any defects caused by: fair wear and tear; materials or workmanship made, furnished or specified by Buyer; non-compliance with Seller's storage, installation, operation or environmental requirements; lack of proper maintenance; any modification or repair not previously authorised by Seller in writing; nor the use of non-authorised spare or replacement parts. Seller's costs incurred in investigating and rectifying such defects shall be paid by Buyer upon demand. Buyer shall at all times remain solely responsible for the adequacy and accuracy of all information supplied by it.
8.6 Subject to Clause 11.1, the foregoing constitutes Seller's only warranties and Buyer's exclusive remedy for breach thereof. No representations, warranties or conditions of any kind, express or implied, shall apply as to satisfactory quality, merchantability, fitness for any particular purpose or any other matter with respect to any of the Goods except for those expressly set out in this Clause 8.
9. BUYER'S ADDITIONAL OBLIGATIONS
9.1 Buyer shall not make any representations, warranties, undertakings or other obligations in relation to the Goods except those that Seller expressly approves in writing from time to time. In any event, Buyer is not entitled to and shall not purport to give any representations, warranties, undertakings or other obligations on behalf of Seller.
9.2 If Buyer supplies the Goods to third parties then it shall ensure that before they are so supplied they are (a) properly tested; (b) comply with all applicable laws and regulations in the territories in which it is to supply them; (c) are safe and free from defects; and (d) include all instructions necessary for their safe use.
9.3 Buyer shall be responsible for the Goods to the extent that they are manufactured or supplied to Buyer's instructions or specifications or include materials or components specified or supplied by Buyer. Buyer shall ensure that such instructions, specifications, materials and components (and the Goods in which they are incorporated) comply with all applicable laws and regulations including those applicable to health and safety and consumer protection.
9.4 Except to the extent otherwise required by applicable law, Seller shall have no responsibility for the disposal of (i) the Goods or any part thereof when they are deemed by law to be "waste" or (ii) any items for which the Goods or any part thereof are replacements. If Seller is required by applicable law including waste electrical and electronic equipment legislation, European Directive 2002/96/EC(WEEE) and related legislation in EU Member States, to dispose of "waste" Goods or any part thereof, Buyer shall, unless prohibited by applicable law, pay Seller, in addition to the Contract Price, either (i) Seller's standard charge for disposing (including all handling' transportation and disposal costs and a reasonable mark up for overhead) incurred in disposing of such Goods.
9.5 Buyer shall indemnify Seller against all losses, liabilities, costs, claims and expenses arising out of any breach of this Clause 9.
10. PATENT ETC. INFRINGEMENT
10.1 Subject to the limitations set forth in this Clause 10 Seller shall indemnify Buyer in the event of any claim for infringement of patents, registered designs, design rights, trade marks or copyright ("Intellectual Property Rights") issued at the date of formation of the Contract arising from the use or sale of the Goods, against all reasonable costs and damages awarded against Buyer in any action for such infringement, or for which Buyer may become liable in any such action, provided always that Seller shall not be liable to so indemnify Buyer in the event that:
(i) such infringement arises as a result of Seller having followed a design or instruction furnished or given by Buyer, or the Goods have been used in a manner, for a purpose or in a country not specified by or disclosed to Seller prior to the date of the Contract or in association or combination with any other equipment or software; or
(ii) Seller has at its expense procured for Buyer the right to continue to use the Goods or has modified or replaced the Goods so that the Goods no longer infringe; or
(iii) Buyer has failed to give Seller the earliest possible notice in writing of any claim made or to be made or of any action threatened or brought against Buyer and/or Buyer has failed to permit Seller, at Seller's expense, to conduct and control any litigation that may ensue and all negotiations for a settlement of the claim; or
(iv) Buyer has made without Seller's prior written consent any admission which is or may be prejudicial to Seller in respect of any such claim or action; or
(v) the Goods have been modified without Seller's prior written authorisation.
10.2 Buyer warrants that any materials, designs and instructions furnished or given by or on behalf of it shall not cause Seller to infringe any intellectual property rights in the performance of Seller's obligations under the Contract and shall indemnify Seller against all losses, liabilities, claims, reasonable costs and expenses which Seller may incur as a result of any breach of such warranty.
11. LIMITATION OF LIABILITY
11.1 Notwithstanding any other provision of the Contract, but subject to Sub-clauses 11.2 and 11.3, Seller's and Seller's Affiliates' and its and their officers', employees', agents' and sub-contractors' combined maximum aggregate liability incurred under or in connection with this Contract or any collateral contract between the parties, arising in or by virtue of breach of contract, tort (including negligence), misrepresentation, breach of statutory duty, strict liability, infringement of rights or otherwise howsoever, shall in no circumstances exceed: (i) for loss of or damage to physical property (excluding the loss of the Goods themselves) or death or personal injury as a result of breach of contract $1,000,000 converted to pounds sterling (or euro where the pound ceases to be legal tender in the United Kingdom) at the exchange rate shown in the British Financial Times as at the next business day after the date on which the claim arose; and (ii) in all other cases, the Contract Price.
11.2 Notwithstanding any other provision of the Contract but subject to Sub-clause 11.3, neither Seller, nor Seller's Affiliates' nor its or their officers, employees, agents, or sub-contractors shall be liable under or in connection with this Contract or any collateral contract for any:
(a) direct or indirect loss of: (i) income; (ii) actual or anticipated profits (iii) anticipated savings (iv) business (v) contracts (vi) goodwill or reputation (vii) or damage to or corruption of data; or
(b) indirect, special or consequential loss or damage of any kind, howsoever caused and whether arising in or by virtue of breach of contract, tort (including negligence), misrepresentation, breach of statutory duty, strict liability or infringement of rights or otherwise howsoever, whether or not such loss or damage was foreseeable or in the contemplation of the parties.
11.3 Nothing in this Contract or any collateral contract shall exclude or in any way limit any liability of Seller, Seller's Affiliates or its or their officers, employees, agents, or sub-contractors for (i) fraud, (ii) death or personal injury caused by their negligence (including negligence as defined in the Unfair Contract Terms Act 1977), (iii) breach of terms implied as to title by section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982, or (iv) to the extent that such liability may not be limited or excluded as a matter of law.
12. STATUTORY AND OTHER REGULATIONS
12.1 If Seller's obligations under the Contract shall be increased or reduced by reason of the making or amendment after the Effective Date of any law or any order, regulation or bye-law having the force of law that shall affect the performance of Seller's obligations under the Contract, the Contract Price and delivery period shall be adjusted accordingly and/or performance of the Contract suspended or terminated, as appropriate.
12.2 Buyer's personnel shall, whilst on Seller's premises, comply with Seller's applicable site regulations and Seller's reasonable instructions, including those relating to safety, security and electrostatic discharge.
13. Compliance with Laws
13.1 Buyer agrees to comply with all applicable import, export control and sanctions laws, regulations, orders, licences, authorisations, general licenses or licence exceptions and requirements as they may be amended from time to time in connection with the Goods and any technology and information in connection with them ("Export Controls") including those of the United States, the European Union and the United Kingdom and the jurisdictions in which Seller and Buyer are established or from which items may be supplied, and the requirements of any licenses, authorisations, general licenses or license exceptions relating thereto will apply to its receipt and use of hardware, software, services and technology. In no event shall buyer use, transfer, release, export or re-export any such hardware, software or technology in violation of such applicable laws, regulations, orders or requirements or the requirements of any licenses, authorisations or licence exceptions relating thereto. Buyer agrees furthermore that it shall not engage in any activity that would expose Seller or any of its affiliates to a risk of penalties under laws and regulations of any relevant jurisdiction prohibiting improper payments, including but not limited to bribes, to officials of any government or of any agency, instrumentality or political subdivision thereof, to political parties or political party officials or candidates for public office, or to any employee of any customer or supplier. Buyer agrees to comply with all appropriate legal, ethical and compliance requirements.
13.2 Buyer undertakes that it shall not use, transfer, release, export or re-export any goods or services or technology or information in breach of the Export Controls covered by UN, US, EU or UK law.
14. DEFAULT, INSOLVENCY AND TERMINATION
Seller shall be entitled, without prejudice to any other rights it may have, to terminate the Contract forthwith, wholly or partly, by notice in writing to Buyer, if (a) Buyer is in default of any of its obligations under the Contract and fails, within 30 (thirty) days of the date of Seller's notification in writing of the existence of the default, either to rectify such default if it is reasonably capable of being rectified within such period or, if the default is not reasonably capable of being rectified within such period, to take such action to remedy the default or (b) on the occurrence of an Insolvency Event in relation to Buyer. “Insolvency Event" in relation to Buyer means any of the following: (i) a meeting of creditors of Buyer being held or an arrangement or composition with or for the benefit of its creditors (including a voluntary arrangement as defined in the Insolvency Act 1986) being proposed by or in relation to Buyer; (ii) a chargeholder, receiver, administrative receiver, administrator or similar person taking possession of or being appointed over or any distress, execution or other process being levied or enforced (and not being discharged within seven days) on the whole or a material part of the assets of Buyer; (iii) Buyer ceasing to carry on business or being unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; (iv) Buyer or its directors, a creditor or the holder of a qualifying floating charge giving notice of their intention to appoint, or making an application to the court for the appointment of, an administrator; (v) a petition being presented (and not being discharged within 28 days) or a resolution being passed or an order being made for the administration or the winding-up, bankruptcy or dissolution of Buyer; or (vi) the happening in relation to Buyer of an event analogous to any of the above in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets.
15. MISCELLANEOUS
15.1 Where Seller supplies software as part of the Goods or carries out work on site then Seller's standard terms and conditions for the supply of software and/or site work shall apply to such supply or work in addition to these Terms and Conditions. Copies of these terms are available from Seller on request.
15.2 No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound.
15.3 If any Clause, Sub-clause or other provision of the Contract is invalid under any statute or rule of law, such provision, to that extent only, shall be deemed to be omitted without affecting the validity of the remainder of the Contract.
15.4 Buyer shall not be entitled to assign, hold on trust or otherwise transfer its rights or obligations hereunder without the prior written consent of Seller.
15.5 Seller enters into the Contract as principal. Buyer agrees to look only to Seller for due performance of the Contract.
15.6 The Contract shall in all respects be construed in accordance with the laws of England excluding, howsoever, any effect on such laws of the 1980 Vienna Convention on Contracts for the International Sale of Goods. All disputes arising out of the Contract shall be subject to the exclusive jurisdiction of the English courts,
15.7 The headings to the Clauses and paragraphs of the Contract are for guidance only and shall not affect the interpretation thereof.
15.8 All notices and claims in connection with the Contract must be in writing (which shall include fax, email and other comparable means of communication).
15.9 Except for the benefit of Clause 11.1 which may be enforced by the persons specified in that clause, a person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
15.10 Any termination of the Contract shall not affect the coming into force or the continuance in force of any provision of the Contract which is expressly or by implication intended to come into force or continue in force on or after such termination.
