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Terms and Conditions of Sale 

1) Definitions

 

In these Terms and Conditions:

 

“Buyer” shall mean the person, company or firm referred to overleaf.

 

“Conditions” shall mean the Seller’s general Terms and Conditions of offer and sale set out below.

 

“Contract” shall mean the agreement between the Buyer and the Seller for the purchase of the Goods, including therein the Conditions and all other documents to which reference may properly be made in order to ascertain the rights and obligations of the parties under the said agreement.

 

“Contract Price” shall mean the sum in the Sellers quotation increased or reduced by such sums (if any) as under the Conditions are to be taken into account in ascertaining the contract price.

 

“Goods” shall mean the Goods to be supplied under the Contract.

 

“Seller” shall mean Effective Energy Systems Limited.

 

2) Offer And Acceptance

 

The Sellers quotation shall constitute an offer to supply Goods (“the Goods”) on and subject to the several Terms and Conditions of offer and sale herein after set out (“the Conditions”). An order shall only be accepted subject to the Conditions notwithstanding that the order form or other document whereby the Buyer placed his order with the Seller may contain or refer to printed terms or conditions inconsistent with or differing from the Conditions. Such order form or other document shall be deemed to constitute an unqualified acceptance of the Conditions unless expressly varied by the Seller in writing. An order must be placed by the Buyer in response to a quotation within 28 days of the date of the quotation after which it shall be deemed to have been withdrawn.

 

3) Delivery

 

3.1) Delivery shall mean the delivery of Goods to the Buyer at the Seller’s place of business, to the Buyer’s own address or delivery of Goods to a carrier nominated by the Buyer. In the absence of specific instructions from the Buyer the Seller may nominate a carrier. The Buyer shall bear all transport, storage, insurance and forwarding costs.

 

3.2) The Buyer is required to acknowledge receipt of all Goods by signing the appropriate Delivery Note. The Delivery Note, duly signed, should then be forwarded to the Seller as indicated on the invoice. If deliveries are delayed at the Buyers request or as a result of delayed payment by the Buyer then the Buyer shall be charged storage costs for every month, or part thereof, after notice that the Goods are ready for delivery. The Seller, after expiration of a reasonable time limit (which will be set by the Seller) may (without prejudice to any other rights of the Seller):

 

(a) Deliver the Goods to the Buyer in accordance with Clause 3.1 above, or

 

(b) Dispose of the Goods either if the Goods are easily re-saleable at the best price obtainable or if the Goods are not easily re-saleable in any way so desired by the Seller (including for the value of the Goods as scrap).

 

3.3) The Delivery Date stated in the Contract is given as accurately as can be predicted, but it is deemed not to be of the essence of the Contract and the Buyer shall not be entitled to refuse delivery on account of delay, howsoever caused.

 

3.4) The Buyer agrees to accept partial delivery. Any Goods delivered in part shall be paid for in accordance with the provisions of Conditions 8 and 12.

 

4) Price Variations

 

4.1) Unless otherwise stated the quotation prices shall be the Sellers ex-works price excluding packaging and insurance costs ruling at the date of delivery, which prices are subject to change without notice.

 

4.2) Unless otherwise stated in the quotation, the Contract price is deemed to exclude Value Added Tax or similar charge.

 

5) Limitation Of Liability Of The Seller

 

5.1) The Sellers quotation is based upon an analysis of advice, information, drawings and specifications (as the case may be) supplied by the Buyer. The Seller shall not be responsible for discrepancies, errors in its analysis nor in any drawings, data or information supplied by the Buyer.

 

5.2) The Seller shall not be liable for any loss or damage whatsoever (including consequential loss or damage) in any way suffered by the Buyer or any other person, firm or company whatsoever, by reason of the fact that the Seller may have inspected, advised or approved any plans, data or information supplied by or on behalf of the Buyer whether prior to the date of the Seller’s quotation or not and the Buyer shall at all times indemnify and keep indemnified the Seller against all losses, claims, damages, charges, expenses and injury (including death) suffered by any person or loss of or damage to property belonging to any person, firm or company to which the Seller, its sub-contractors or their respective employees may be liable under the Contract except where such losses, claims, damages, charges and expenses arise out of or are caused by the negligence, wilful misconduct or breach of warranty of the Seller, its sub-contractors or their respective employees.

 

6) Buyers Default

 

6.1) If under the Contract deliveries are made over an extended period each consignment shall be invoiced separately.

 

6.2) If the Buyer fails to make payment of a sum when the same becomes due, whether under the Contract or any other Contract which the Seller may have with the Buyer, the Seller shall be entitled to charge the Buyer interest on the sum due under the Contract and unpaid, calculated at a rate of 4% above HSBC Bank Plc’s base rate, per month. If such payment or any part thereof,  shall remain in arrears for seven days after written demand has been made, thereof the Seller shall have the further right to cancel the Contract and/or any such other Contract, and in either case, without prejudice to any other right or remedy which the Seller may have against the Buyer.

 

6.3) If the Buyer makes any composition or arrangement with or assignment for the benefit of his creditors, or has any process or execution levied upon his goods, or being a Company goes into liquidation, administration, or has a receiver appointed, or being a person becomes bankrupt or commits any act of insolvency within the meaning of the Insolvency Act 1986, the Seller may without prejudice to any other remedy, determine the Contract and resell the Goods and any loss on such resale shall be paid by the Buyer.

 

6.4) Any concession, latitude or waiver the Seller may allow or has allowed the Buyer at any time shall not prevent the Seller subsequently exercising its full rights under the Contract.

 

7) Risk

 

Risk passes to the Buyer on delivery of the Goods to him or his authorised forwarding agent in accordance with Condition 3. This shall also apply if partial delivery is made or if the Seller has agreed to assume installation or transportation costs.

 

8) Payment

 

Subject to standard credit facilities being approved, the Seller’s normal terms of payment are:

 

8.1) For supply only, full payment to be made on confirmation of sales order.

 

8.2) For supply and installation orders, a deposit of 50% shall be paid on the placing of an Order by the Buyer with the Seller (subject to standard credit checks). 50% (Final Payment) shall be paid by the Buyer to the Seller upon completion of the works.

 

8.3) For credit account customers:

 

(a) Until such time as the Seller has confirmed credit account facilities in writing, payment shall be due in full in sterling on or before delivery, without any set off, deduction or counterclaim.

 

(b) The Seller may at its discretion establish a credit account for the Purchaser (subject to receipt of references or such other conditions as the Seller sees fit). The Seller shall be entitled to refuse to establish or to continue such an account without providing any reason. If such an account is established and remains in operation, payment is due in full in sterling 30 days from the end of the month in which the invoice is dated. The Seller may at its discretion vary the credit limit from time to time.

 

(c) Time for payment shall be of the essence and no payment shall be deemed to have been received until the Seller has received cleared funds.

 

(d) A settlement discount off the invoice’s total amount may be allowed for payment made within 14 days from the date of invoice. The amount of any settlement discount shall be determined by the Seller at its discretion and notified on the Seller’s invoice/statement.

 

(e) The Seller may without prejudice to its other rights charge interest on any overdue accounts at the rate of 4% over the base rate of HSBC Bank plc from time to time to be compounded monthly from the due date until payment in full is made both before and after judgement.

 

(f) The Seller reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.

 

(g) If any amount payable to the Seller by the Buyer on any account is left outstanding beyond the due date for payment, the Seller may suspend performance of its obligations under any or all contracts with the Buyer. If any outstanding amount is overdue the Seller reserves the right strictly at its own discretion to treat any outstanding order as cancelled without incurring any costs or other liability as a result of such cancellation.

 

(h) The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.

 

(i) The Seller may request a sum to be paid by the Buyer in advance. Any advance payments made by the Buyer Purchaser at the Seller’s request shall be held by the Seller as a deposit and not a part payment. Any deposit is non refundable in the event of cancellation of the Contract by the Buyer.

 

(j) The Buyer shall pay to the Seller, in addition to other amounts payable hereunder, any costs reasonably incurred by the Seller (including without limitation, legal costs and fees of debt collection agencies) in recovering any amounts due to the Seller from the Buyer pursuant to the Contract.

 

8.4) In the event of cancellation by the Buyer for any reason prior to fulfilment of the Contract any monies paid by the Buyer under paragraph 8.1 and 8.2 shall be forfeited to the Seller who shall retain the monies so paid.

 

Unless a special agreement has been made and if the account is overdue the Seller may suspend without notice performance of any of its obligations

 

9) Right Of Set-Off

 

No right of set-off shall exist in respect of any claims by the Buyer against the Seller unless and until such time as such claims are accepted by the Seller in writing and the Buyer shall not withhold all or any part of any sum which has become due for payment under the Contract.

 

10) Suspension And Cancellation

 

10.1) In the event of suspension or cancellation of the Contract by the Buyer for any reason whatsoever (otherwise than in consequence of some default on the part of the Seller) the Seller reserves the right to make a charge for losses incurred either directly, indirectly or otherwise as a result of such suspension or cancellation, which shall be paid within seven days of the notification of the charges by the Seller to the Buyer.

 

10.2) Upon resumption of the Contract after any suspension the Seller shall be allowed such extensions of time for the performance of its obligations as is fair and reasonable having regard to the period of suspension and the Contract price shall be adjusted in accordance with the provisions of Conditions 4 and 8.

 

11) Title

 

11.1) Notwithstanding the delivery of any Goods the property in such Goods shall remain in the Seller until payment in full for the Goods the subject of this Contract and until payment in full for all other Goods the subject of any Contract between the Buyer and the Seller which at the time of payment of the full price of the Goods the subject of this Contract have been delivered to the Buyer but not paid for in full, has been received by the Seller in cash. Where payment is tendered by cheque or other negotiable instrument, the Seller shall not have been paid the amount tendered until the cheque or other instrument has been honoured and the amount credited to the Sellers bank account. The Buyer acknowledges that until such time, it is in the possession of the Goods solely as bailee for the Seller and that the Goods are held at the Buyers risk.

 

11.2) For the purpose of the recovery of the Goods the Buyer gives the Seller irrevocable authority to enter any premises where they are situated or are reasonably thought to be situated for the purpose of repossessing the same and this authority shall extend to any premises occupied by an Administrative Receiver, Liquidator or other Administrator or Mortgagee of the Buyer in the event of the Buyer’s default under Clauses 6.1 and 6.4 inclusive.

 

11.3) As long as the property remains with the Seller, the Buyer may not sell the Goods other than in the ordinary course of business. If the Buyer should resell the Goods to third party, or if he joins such materials to other Goods in such a way that both form integral parts of a new unit, the Buyer hereby assigns to the Seller, until complete settlement of all the Sellers claims, all receivables resulting from the sale of the Goods or from the connection of the Goods with other Goods.

 

11.4) As long as the property remains with the Seller, the Buyer may not encumber the Goods delivered or transfer title to the Goods for security purposes and shall separately label the same as the property of the Seller and shall separately store the same from the Buyers own goods and property. The Buyer shall immediately notify the Seller by registered letter if a third party seizes the Goods. The Buyer shall bear the cost of any action resulting from such seizure.

 

11.5) As long as the property remains with the Seller, the Buyer agrees:

 

(a) to insure the delivered Goods against the risks of fire, theft and water,

 

(b) to submit the policy to the Seller and

 

(c) that the rights on the insurance shall accrue to the Seller for the aforementioned period. Should the Buyer fail to submit evidence of existing insurance coverage while the property remains with the Seller, in accordance with Condition 16 the Seller may take out such insurance at the Buyers expense.

 

12) Warranty

 

12.1) The Seller warrants that the Goods are manufactured and supplied by the company mentioned in the product’s accompanying literature pursuant to that company’s workmanship and materials.

 

12.2) If within the period of one month:-

 

(a) after dispatch of the Goods in the case of a single consignment or

 

(b) after dispatch of the final consignment of the Goods in cases of delivery by instalments any fault is found in the Goods which in the opinion of the Seller is not attributable wholly or in part to installation and is a fault within its control, then in each case the Seller shall at its own expense and sole discretion either repair or replace the faulty Goods provided that notice of such fault is given in writing to the Seller by registered post not more than 7 days after the expiry of the said period of one month.

12.3) Where possible, the Seller extends to the Buyer the benefit of any warranty or guarantee given to it by The manufacturer save that such warranty or guarantee is limited to the Terms and Conditions as to warranty contained in the Supply Terms by The manufacturer to the Seller which the Seller is willing to produce to the Buyer at the Buyer’s request but at the Buyers cost.

 

12.4) Subject as aforesaid all express or implied warranties, terms and conditions, statutory or otherwise, as to quality or fitness for any purpose or the soundness or performance of the Goods or any component thereof either supplied by the Seller or a third party are hereby expressly excluded from the Contract notwithstanding that samples or materials or merchandise to be handled or products to be installed by the use of the Goods shall have been supplied to the Seller by or on behalf of the Buyer.

 

13) Substitution Of Materials

 

The Seller reserves the right to substitute without prior notice or consultation other materials for which may be specified in the Contract provided that the operating capabilities and technical properties are not, in the opinion of the Seller, adversely affected.

 

14) Alterations To Design Or Specification

 

Any alteration to design and/or specification requested by the Buyer shall be notified to the Seller in writing. Any costs incurred in complying with such alterations shall be added to the Contract price and shall be paid by the Buyer.

 

15) Sub-Contracting

 

The seller reserves the right to Sub-Contract but by doing so the Seller will not be relieved of any liabilities under the Contract.

 

16) Force Majeure

 

Whilst the Seller undertakes to make every endeavour to execute orders as near to the date specified for delivery as possible all orders are accepted subject to delays caused by fires, acts of War, Civil Commotion, Riot, Industrial Disputes, Non availability of raw material or power supply, Acts of Parliament or through any other cause beyond the control of the Seller and the Seller shall not incur any liability or be responsible or any inconvenience , costs, losses or damages suffered by the Buyer arising from such delays and unless specifically otherwise agreed by the Seller in writing no penalty shall apply.

 

17) Goods Lost Or Damaged In Transit

 

17.1) If the Goods have not been received by the date stated on the Sales Order, the Buyer shall advise the Seller in writing immediately.

 

17.2) Upon the receipt of such Notice within the period specified the Seller will use its reasonable endeavours to assist the Buyer to obtain proof of delivery or admission of damage or short delivery from the carrier.

 

18) Demonstrations / Trial Installations

 

18.1) Where the Buyer requests that the Seller supplies goods on a trial basis or for demonstration purposes at the Buyer’s own premises or some other designated location stipulated by the Buyer the Buyer undertakes with the Seller to ensure the premises are both suitable for the particular demonstration/trial installation, and that in the event any damage to the goods occurs whilst in the possession of the Buyer the Seller has the right to claim from the Buyer the cost of the damaged goods and/or the demonstration costs arising all of which shall be recoverable as a liquidated debt.

 

18.2) The Seller shall charge the Buyer a demonstration or installation fee at such a rate to be mutually agreed between the Seller and the Buyer prior to arranging any demonstration or installation pursuant to the provisions of Clause 18.1 above.

 

18.3) Where the Buyer pays the Seller for any demonstration or temporary trial installation of the goods and subsequently purchases goods from the Seller on a formal basis any monies paid by the Buyer to the Seller shall be treated by the Seller as a payment on account of the total price of the contract and deducted from the price of the goods. If however the Buyer does not proceed to purchase the goods after such demonstration or trial installation the Seller shall refund to the Buyer a maximum of 25% of the demonstration or installation charge arising under the provisions of Clause 18.1 and 18.2 hereof.

 

19) Confidentiality

 

19.1) Neither party shall, without the prior written consent of the other, disclose to any third party or otherwise make use of any confidential information which has come into its possession or which may in the course of this Agreement come into its possession relating to the other party, save that the Buyer consents to the Seller collecting and processing personal data relating to the Buyer, its officers, employees or agents for arranging or managing the customer credit facilities including credit records, overdue payments or the provision or administration of this Agreement or for development research or marketing of the Sellers business, or the transmission of any personal data collected for any of these purposes outside the European Union for the purpose of data processing.

 

19.2) The obligations contained in this Clause shall continue notwithstanding any termination of this Agreement.

 

20) Notices

 

Any notice given pursuant to this Agreement shall be in writing and may be served by personal delivery, electronic mail, facsimile transmission, pre-paid recorded delivery or registered post to the addressee at its registered office for the time being and shall be deemed to have been received:

 

(a) In the case of personal delivery, electronic mail or facsimile transmission at the time of delivery or sending as appropriate;

 

(b) In the case of recorded delivery or registered post, 48 hours from the time of posting.

 

21) Dispute Resolution

 

If the Buyer is dissatisfied with any Service or wishes to make a complaint, this should be raised with the Managing Director of the Seller in the first instance.

 

22) General

 

22.1) These Terms and Conditions constitute the entire Agreement between the parties with respect to the subject matter of this Agreement and supersede and extinguish any representations and understandings previously given or made, other than those contained herein, and no variation shall be effective unless contained in a written document which is dated and refers to this Agreement and its date, identifies the Clause or Clauses which are to be varied and has been signed by a Director of the Seller and countersigned by an authorised representative of the Buyer.

 

22.2) Headings in this Agreement are inserted for convenience only and shall not affect the interpretation of any of its provisions.

 

22.3) These Terms and Conditions shall be construed and governed in all respects in accordance with the laws of England and any disputes or differences shall be subject to the exclusive jurisdiction of the English Courts.

 

22.4) If any provision of these Terms and Conditions is held by the English Courts to be invalid or unenforceable in whole or in part the validity of the remaining Conditions shall not be affected.

 

22.5) Pursuant to Section 1(2)(a) of the Contracts (Rights of Third Parties) Act 1999, none of these Terms and Conditions may be enforced