AGREEMENT FOR THE SALE OF GOODS UNDER THE SCANPROBE AND RENOLINE BRANDS
SCHEDULE 1
TERMS & CONDITIONS FOR THE SALE OF GOODS
These Terms and Conditions for the supply of goods (“Conditions”) apply to the Agreement between the Customer and Seller for the sale of the Goods listed in the Commercial Terms. These Conditions apply to those Goods only and nothing in this Agreement shall be deemed as an undertaking by the Seller to sell any further Goods to the Customer, any such agreement to do so being subject to a separate contract between the parties.
- Interpretation
1.1 Definitions
“Agreement” means as defined in the Commercial Terms.
“the Customer” means the customer stated in the Acknowledgement.
“the Commercial Terms” means the commercial terms set out in the Acknowledgement
“Force Majeure Events” means any circumstance not in the Seller’s reasonable control including:
a) acts of God, drought, flood, earthquake or other natural disaster;
b) epidemic or pandemic;
c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
d) nuclear, chemical or biological contamination or sonic boom;
e) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, (or failing to grant a necessary licence or consent);
f) collapse of buildings, fire, explosion or accident;
g) any labour or trade dispute, strikes, industrial action or lockouts;
h) non-performance by supplier or subcontractor; and
i) interruption or failure of utility service.
“Goods” means the items listed in the Acknowledgement in the quantities set out in the Acknowledgement.
“Insolvency Event” means:
a) where a party becomes insolvent, or if any order is made or a resolution is passed for the winding up of a party (other than voluntarily for the purposes of a solvent amalgamation or reconstruction), or if any administrator, administrative receiver or receiver is appointed in respect of the whole or any part of a party’s assets or business, or if the other party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt; or
b) where a party is an individual, is declared bankrupt or makes any arrangement with or for the benefit of their creditors or has a county court administration order made against them under the County Court Act 1984 or any successor legislation or
c) where a party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
d) any event that occurs which is analogous with the events set out in a) to c) above in any jurisdiction.
“Intellectual Property Rights” means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks (and service marks), business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off (or unfair competition), rights in designs, (rights in computer software,) database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, any rights and all similar or equivalent rights or forms of protection that subsist or will subsist now or in the future in any part of the world.
“the Warranty” means the Scanprobe Technique’s Limited Warranty attached as Schedule 2 to these Terms & Conditions and which forms part of this Agreement.
“Order” means an order for Products submitted by the Customer in accordance with clause 3.
“Specification” means as defined in clause 7 of these Conditions.
1.2 References
a) A reference to a statute or statutory provision is a reference to it 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.
c) The headings set out in these Conditions are for reference only and shall be disregarded in construing and interpreting this Agreement.
2. Entire Agreement
2.1 This Agreement constitutes the entire agreement between the parties, and in the case of any inconsistency between any e-mail, letter or quotation incorporating or referring to these conditions and any order or form of contract sent by the Customer to the Seller whatever may be their respective dates, the provisions of this Agreement shall prevail.
2.2 No variation of this Agreement shall be binding unless made in writing and signed by authorised representative of the Seller and the Customer respectively.
2.3 A failure or delay by the Seller to exercise any right or remedy provided under this Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under this Agreement or by law shall prevent or restrict the further exercise of that or any other right or remedy
2.4 In the event any term of this Agreement or any part or parts thereof shall be held to be invalid such term or parts thereof shall be severed and the remaining conditions shall continue in full force and effect.
2.5 The Customer acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies for, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
2.6 The Customer agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
3. Orders
3.1 The Customer may place orders for goods by attending in person at the Seller’s trade counter or by telephone or by email.
3.2 Orders are only accepted subject to these Conditions.
4. Prices and Quotations
4.1 The price is the price shown in the Quotation and Acknowledgement
4.2 Unless otherwise stated all Quotations are in GBP currency and are exclusive of VAT, sales tax or any other applicable taxes, fees or charges which shall be paid by the Customer.
4.3 Unless previously withdrawn a Quotation shall remain open for a Customer to place an order on the basis thereof for 30 days from date of issue after which period it shall be deemed to have been withdrawn.
4.4 Quotations are subject to confirmation by a director or other duly authorised representative of the Seller on receipt of order and may be withdrawn or revised by the Seller unless and until so confirmed.
4.5 Except where previously agreed in writing, the Seller’s prices shall be those ruling at the date of despatch of the Goods. If at any time between the date of acceptance of an order by the Seller and the delivery of the Goods Seller’s costs are increased due to reasons of wages, materials or other costs then the Seller reserves the right to adjust the invoice price by such an amount as shall fairly represent the increase in cost to the Seller and the invoice price so adjusted shall be payable as if it were the original contract price.
4.6 The price of the Goods is set on the basis the Goods are delivered by the Seller in accordance with clause 6.1 below. If required by the Customer, the Seller may but shall be under no obligation to arrange delivery to another place and transportation thereto and insurance therefor on the Customer’s behalf and at the Customer’s expense and all such insurance and transport arranged by the Seller shall be deemed to have been arranged by the Seller as agent for the Customer. Accordingly, save to the extent of any liability that the Seller may have to the Customer as agent and which cannot be excluded by law, the Seller shall have no liability to the Customer in respect of any transportation and/or insurance services which the Seller may arrange for the Customer as agent, pursuant to this clause.
4.7 As between the Seller as agent and principal, any such liability shall be the principal’s liability.
4.8 Documentation
The Seller will supply Invoice, Packing List and documents related to product safety, such as batteries as standard for each shipment. Any costs related to arranging additional documentation, such as Certificates of Origin, will be for Customers account unless otherwise agreed in writing.
5. Manufacture Quality and Packing
5.1 The Seller shall ensure that the Goods conform with the Specification and shall further comply with the Sellers Warranty.
5.2 The Seller shall ensure that the Goods are properly packed and secured in a manner to enable them to reach their destination in good condition. Any packing requirements beyond those offered as standard by Seller shall be payable by Customer.
5.3 The Seller shall obtain and maintain in force for the Term all licences, permissions, authorisations, consents and permits needed to manufacture and supply the Products in accordance with the terms of this Agreement.
6. Delivery
6.1 Unless otherwise agreed in writing by the Seller all Goods shall be delivered to the Customer EXW at the premises of the Seller.
6.2 Times and dates given for delivery whether set out in the Commercial Terms or otherwise are indicative only. Time for delivery shall not be of the essence of any contract (nor shall the Seller be under any liability for delay in delivery for any reason whatsoever whether or not such reason is beyond the Seller’s reasonable control unless otherwise expressly agreed in writing at or before the date of the order in which case the Seller’s liability shall be limited to such liquidated damages as may be specifically agreed in writing). Without prejudice to the generality of the foregoing, any delay in delivery of any instalment of Goods shall not entitle the Customer to refuse any subsequent instalment or otherwise repudiate the contract.
6.3 Risk in the Goods shall pass when the Goods leave Seller’s premises unless an alternative incoterm is agreed in writing.
6.4 Where it is agreed that delivery shall take place otherwise than at the Seller’s premises the Customer shall be responsible for and shall supply all necessary machinery, equipment and labour and pay all incidental costs relating to the off-loading and taking delivery of the Goods at the agreed place.
7. Product Specification and Defective Products
7.1 The Customer shall supply the Goods in accordance with the Specification and pursuant to the Warranty.
7.2 All illustrations, drawings, catalogues and descriptive matter are of a generally informative nature only and do not form part of the specification or description of the Goods except to the extent of being expressly incorporated into the contract. The Seller shall be entitled without giving notice of the same to the Customer to make such reasonable modifications in specifications, descriptions, designs, materials or finishes as it deems necessary or desirable and the Customer shall not be entitled to object to or reject the Goods by reason of any such modification.
7.3 In the event the Customer claims that the Goods or any of them are defective, the Seller reserves the right to inspect those Good(s) and may, at the Seller s discretion, require the return of the Good(s) to a place notified by the Seller (at the Customer’s cost) to carry out inspection.
8. Product Recall
8.1 In the event of a request, court order or other directive of a governmental or regulatory authority to withdraw any Goods from the market (“Recall Notice”) the Seller shall immediately notify the Customer in writing enclosing a copy of the Recall Notice.
9. Payment
9.1 Time for payment shall be of the essence of the contract and payment shall be made by the method stated in the Acknowledgement, either;
9.1.1 immediately upon placing of the order pursuant to clause 3
9.1.2 on credit terms
9.2 Where payment is on credit terms, payment must be made by the due date of the invoice.
9.3 If the Customer fails to make a payment due to the Seller under this Agreement by the due date, then, without limiting the Seller’s remedies under clause 9.1, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%.
9.4 The Customer shall not be entitled to exercise any right of set-off, lien or any other similar rights of claim against any sum owed to the Seller pursuant to this Agreement.
9.5 If payment for the Goods is due in instalments and the Customer fails to make payment on time for any instalment then without prejudice to the Seller’s rights under this Agreement, all other instalments shall become immediately due and payable regardless of the original date for payment of that instalment.
9.6 Without prejudice to any rights of the Seller, any sum payable to the Seller under the Agreement shall become immediately due and payable regardless of the original date for payment where;
9.6.1 the Customer fails any credit check required by the Seller at any time;
9.6.2 the Seller suffers an Insolvency Event;
9.6.3 the Seller (acting reasonably) considers that the Customer is on the verge of suffering an Insolvency Event or reasonably considers that the credit worthiness of the Customer puts the Seller at risk of non-payment by the Customer.
10. Retention of Title
10.1 The title in all Goods delivered by the Seller will remain vested in the Seller and shall not pass to the Customer until the last of the following events namely payment in full of the price of the Goods and payment in full of every sum owing by the Customer to the Seller under or arising from any transaction or sale on any account whatsoever.
10.2 Until payment has been made in accordance with clause 10.1 above the Customer will so keep the Goods that they may be clearly identifiable as the property of the Seller and are separate from other Goods and products purchased by the Customer.
10.3 The Customer shall be entitled to sell the Goods for money to a bona fide customer in the normal course of business and to deliver the same pursuant to such sale.
10.4 At any time before the happening of the last event mentioned in clause 10.1 above the Seller may by notice in writing to the Customer determine the Customer’s right to sell any Goods then in its possession and/or control and the Customer shall thereupon return all such Goods to the Seller and at any time after giving such notice the Seller shall be entitled to enter upon any premises where any Goods supplied to the Customer by the Seller are or are reasonably believed to be and may remove them.
10.5 Where the Customer sells on the Goods to a third party, the customer is required to retain records of the sale for a minimum of 10 years and make such records available to the Seller upon request in writing.
11. Claims
11.1 Where it is agreed that delivery shall take place otherwise than at the Seller’s premises, no claim for non-delivery, partial loss or damage to the Goods will be accepted by the Seller unless notified in writing by the Customer to the Seller (with a copy to the carrier if a carrier has been used to deliver the Goods):-
within 3 days of receipt of the Goods concerned for partial loss or damage and;
within 10 days of the date when the Goods should have been received.
In the event of any matter giving rise to complaint in respect of the quality of the Goods which would be apparent to the Customer on reasonable inspection the Customer must give written notice thereof to the Seller within 14 days from the date of delivery.
In the event of a complaint in respect of a matter not apparent on reasonable inspection the Customer must give written notice thereof to the Seller within seven days of the defect coming to the attention of the Customer and/or its employees or agents but in any event not later than twelve months from delivery of the Goods in question.
12. Force Majeure
12.1 If the Seller is prevented, hindered or delayed in or from performing any f its obligations under this Agreement by a Force Majeure Event, it shall not be in breach of this Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
12.2 If the period of delay extends beyond a reasonable period then either party may terminate the contract as regards any Goods then undelivered provided that if the Customer cancels the contract the Seller may by counter-notice in writing given within 28 days of such cancellation require the Customer to take and pay for at a proper proportion of the contract price any of the Goods manufactured or adapted or in the course of manufacture or adaptation to the Customer’s design or specification and any Goods or materials which the Seller has purchased or has contracted to purchase for the purpose of the contract and for which there is no other market readily available to the Seller.
13. Third Party Rights
This Agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this agreement.
14. Dispute Resolution
14.1 If a dispute arises out of or in connection with the Agreement or the performance, validity or enforceability of it (“Dispute”) then the parties shall follow the procedure set out in this clause 14;
14.1.1 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, representatives of the Seller and Customer shall attempt in good faith to resolve the Dispute; and
14.1.2 if the representatives of the Seller and the Customer are for any reason unable to resolve the Dispute within (14) days of service of the Dispute Notice, the Dispute shall be referred to the Finance Director or person duly appointed by the Seller and Customer respectively who shall attempt in good faith to resolve it.
14.2 If the matter giving rise to the Dispute has not been resolved to the reasonable satisfaction of the parties within (14) days, following referral of the matter in accordance with clause 14.1.2, then the Dispute shall be finally resolved by arbitration, as follows:
14.2.1 the seat of the arbitration shall be London, England;
14.2.2 the governing law of the arbitration shall be the laws of England and Wales; and
14.2.3 the language of the arbitration shall be English.
14.2.4 The party who served the Dispute Notice shall, subject to clauses 14.1.2 and 14.2, send to the other party a notice of arbitration demanding that the dispute be referred to arbitration.
14.2.5 The arbitral tribunal shall consist of three arbitrators, one appointed by the Seller, the second appointed by the Customer and the third, who shall act as (presiding arbitrator), appointed by the two parties within (14) days of the appointment of the first and second arbitrators. If the third arbitrator is not appointed within this period, either party may request the President of the Chartered Institute of Arbitrators OR Law Society of England and Wales to appoint an arbitrator for the time being.
14.3 No party may commence any court proceedings in relation to the whole or part of the Dispute until the procedure in clause 14 of these Conditions is followed, provided that the right to issue proceedings is not prejudiced by a delay.
15. Limitation of Liability
15.1 Nothing in this clause 15 shall limit the Customer’s payment obligations under this Agreement.
15.2 Nothing in this agreement limits any liability which cannot legally be limited, including liability for:
15.2.1 death or personal injury caused by negligence; and
15.2.2 fraud or fraudulent misrepresentation;
15.3 Subject to clause 15.2 above the Seller’s liability for a defect in the Goods or any of them shall be subject to the remedy set out in the Warranty.
15.4 Subject to clauses 15.1 and 15.2 neither party shall be liable to other party in contract or in tort for any:
15.4.1 Loss of profits.
15.4.2 Loss of sales or business.
15.4.3 Loss of agreements or contracts.
15.4.4 Loss of anticipated savings.
15.4.5 Loss of use or corruption of software, data or information.
15.4.6 Loss of or damage to goodwill.
15.4.7 Indirect or consequential loss.
16. Counterparts
This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts together shall constitute the one Agreement.
17. Law and Jurisdiction
17.1 This agreement 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.
17.2 Subject to clause 14 of these Conditions, 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 agreement or its subject matter or formation.
SCHEDULE 2
THE WARRANTY
The Seller warrants that all Goods will conform to applicable industry specifications, will be of good material and workmanship, and will be free from defects in material, workmanship, and construction. Where Goods are found to have material, workmanship, or construction defects within twelve months from the date of purchase that renders the Goods unsuitable for use, the Seller will, at its sole discretion, repair or replace the defective components, replace the Goods, offer an equivalent alternative as a replacement, or refund the purchase value.
Claims for Goods under this warranty shall be notified by the Customer to the Seller or the authorised Dealer from whom the Goods were purchased no later than twelve (12) months from the date of purchase and within fourteen (14) days of identifying the defect. Notification of the nature of the suspected defect shall be given to the Seller or its authorised Dealer and their permission must be given in writing prior to the Goods being dispatched to the Seller. The Seller offers a back-to-base warranty meaning that the shipment of Goods by Customer to the Seller shall be at the Customer’s expense and risk. The return shipment of repaired or replacement Systems by the Seller to the Customers will be at the Sellers expense should the defect be found to meet the criteria for repair or replacement under this Warranty. All defective Goods shall be returned to the Sellers premises (or as otherwise instructed) no later than twenty-eight (28) days from the date the defect has been notified to the Seller.
The exception to the Warranty period stated above are products from FIXALINE whereby claims shall be notified by the Customer to the Seller no later than six (6) months from the date of purchase and within fourteen (14) days of identifying the defect.
Repair or replacement of the Goods will not extend the duration of the Warranty beyond the original twelve (12) months from purchase date.
Repairs to any defects caused by negligent or improper use, neglect, careless operation by the Customer, inadequate maintenance, normal wear and tear or because of excessive force or shock, will be undertaken at the Customer’s expense.
Goods sold as consumables to be used for professional pipeline repairs, such as Inversion Hoses, Packers, Liners and Repair Patch Kits, or Resin and Activator Chemicals, will only be accepted for return in the case of defects caused by manufacturing error or material flaw.
Resins and Activator Chemicals typically have short shelf lives (up to six months). Returns will not be accepted for any Goods that have exceeded their shelf life, where this is less than twelve (12) months.
The maximum value of the warranty is the value of the Goods. The Seller will not be liable for any consequential business losses incurred by the Customer because of any defects in the Goods, howsoever caused.
Repairs or modifications to Goods undertaken by any agencies other than the Seller or their certified and authorised agents will not be covered by this warranty. Any unauthorised repairs or modifications undertaken on Goods may invalidate the warranty. This warranty is not transferrable. This warranty does not affect your statutory rights.
For any warranty claim please contact the Seller at service@scanprobe.com, the dealer from whom the Goods were purchased, or any certified Scanprobe Service Centre.
