Semmco Limited

SEMMCO LIMITED: TERMS & CONDITIONS OF SALE

1 Interpretation

1.1 In these Conditions

`Buyer’ means the person who accepts a quotation for the sale of the Goods or whose order for Goods is accepted by the Seller.

`Conditions’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.

`Contract’ means the contract for the purchase and sale of the Goods in accordance with these Conditions.

‘Force Majeure Event’ means any circumstance not within a party’s reasonable control including:
(a) acts of God, flood, drought, 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) events and circumstances directly related to the withdrawal of the United Kingdom from the European Union;
(e) nuclear, chemical or biological contamination or sonic boom;
(f) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
(g) collapse of buildings, fire, explosion or accident; and
(h) interruption or failure of utility service.

`Goods’ means the goods (including any instalment of the goods or any parts for them) specified on the order form or quotation to which these conditions are attached.

‘Order’ means the Buyer’s order for the Goods, as set out in the Buyer’s purchase order form which is accepted in writing by the Seller, or the Buyer’s written acceptance of the Seller’s quotation.

`Seller’ means Semmco Limited (a limited company registered in England with registration number 2763956 whose registered address is at 9 Kestrel Way, Goldsworth Park Trading Estate, Woking GU21 3BA).

1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.

1.4 A reference to “writing” or “written” includes email.

1.5 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.6 A reference to a party includes its personal representatives, successors and permitted assigns.

2 Basis of the Sale

2.1 The Seller shall sell, and the Buyer shall purchase, the Goods in accordance with the Order, subject to these Conditions.

2.2 These Conditions shall apply to the Contract to the exclusion of any other terms and conditions that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.3 A quotation for the Goods by the Seller does not constitute a legal offer and the Seller reserves the right to withdraw or amend any quotation at any time before the Seller’s acceptance of the Buyer’s order.

2.4 Any samples, drawings, descriptive matter or advertising produced by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.

2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

3 Orders and Specifications

3.1 No Order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’s authorised representative.

3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.

3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Order. Unless specifically included in the Order, installation, demonstration and delivery are not included in the price quoted and will be charged in addition at the Seller’s standard rates. At the request of the Buyer, certified training may also be added to the Order.

3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all liabilities, loss, damages, costs and expenses (including any direct, indirect, or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Seller in connection with, or paid or agreed to be paid by the Seller in settlement of any claim made against the Seller for, any actual or alleged infringement of any third party’s patent, copyright, design, trade mark or other industrial or intellectual property rights arising out of or in connection with the Seller’s use of the Buyer’s specification. This clause 3.4 shall survive termination of the Contract.

3.5 The Seller reserves the right to make any changes in the specification of the Goods if required by any statutory or regulatory requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.

3.6 If the United Kingdom’s withdrawal from the European Union has a material effect on the ability of the Seller to fulfil the Order such that it is no longer commercially viable for the Seller to do so on the terms agreed, following consultation with the Buyer, the Seller may:

3.6.1 cancel the Order in full and will refund any part of the price already paid to the Buyer; or

3.6.2 increase the price to include the additional costs incurred by it as a result of the withdrawal of the United Kingdom from the European Union.

3.7 The Buyer may, at any time prior to collection / delivery, cancel an Order by written notice to the Seller. If the Buyer cancels an Order, the Buyer shall indemnify the Seller in full against all liabilities, loss, damages, costs and expenses (including any direct, indirect, or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Seller as a result of cancellation, with a minimum amount payable to the Seller of 40 per cent of the agreed price for the Order (including all delivery charges and other expenses of the Seller for which the Buyer has agreed to be responsible).

4 Price of the Goods

4.1 The price of the Goods shall be the price specified in the Order or, where there is no such price specified, the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom, the Seller’s published export price list shall apply.

4.2 The minimum Order price is £250 plus VAT.

4.3 The currency chosen at the time of quotation shall be the currency for the Order. If the Buyer’s purchase order form states a different currency to that stated in the quotation, an additional charge of £250 shall apply.

4.4 All prices quoted are valid for 30 days from the date of issue of the quotation only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.

4.5 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to:

4.5.1 any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture);

4.5.2 any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer; or

4.5.3 any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

4.6 Except as otherwise stated in a quotation or any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.

4.7 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller at the prevailing rate.

4.8 The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned undamaged to the Seller before the due payment date.

5 Terms of Payment

5.1 Subject to paragraph 5.2, the Seller may invoice the Buyer for the Goods on, or at any time after, an Order and before or after delivery of the Goods.

5.2 If the Goods are to be collected by the Buyer, or the Buyer fails to take delivery of the Goods at the time and place agreed in writing between the Seller and the Buyer the Seller may invoice the Buyer at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has attempted delivery of the Goods.
5.3 The Buyer shall pay the price of the Goods within 30 days of the date of the Seller’s invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. Time for payment shall be of the essence of the Contract.
5.4 Receipts for payment will be issued only upon request.

5.5 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:

5.5.1 cancel the contract or suspend any further deliveries to the Buyer;

5.5.2 allocate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported allocation by the Buyer); and/ or

5.5.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of four per cent per annum above Lloyds TSB base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

5.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6 Delivery

6.1 Unless otherwise agreed in writing, the Buyer shall collect the Goods at the Seller’s premises within 5 business days or a pre-arranged time agreed by both parties after the Seller has notified the Buyer that the Goods are ready for collection. Delivery is completed on the completion of the loading of the Goods at the delivery location.

6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

6.3 Where the Goods are to be delivered in installments, each delivery shall constitute a separate contract. Any failure or delay by the Seller to deliver any one or more of the installments or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to cancel any other instalment.

6.4 If the Seller fails to deliver the Goods (or any installment) for any reason the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer of obtaining replacement goods of similar description and quality in the cheapest available market, less the price of Goods. The Seller shall have no liability for any failure to deliver the Goods to the extent such failure is caused by a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

6.5 If the Buyer fails to take delivery of the Goods at the agreed time and place stated for delivery (otherwise than by reason of Force Majeure) then, without prejudice to any other right or remedy available to the Seller, the Seller may:

6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or

6.5.2 sell the Goods at the best price readily obtainable, and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.

6.6 The place stated for delivery of Goods in the Order shall not be changed without the written consent of the Seller. If the Buyer wishes to change the place for delivery, the Seller may charge the Buyer for any additional costs incurred in connection with delivery to the new place.

6.7 The Buyer shall be responsible for ensuring that the Seller is able to access the site for delivery, installations, modifications, inspections, training, repairs or collection of the Goods for any modifications, inspections or repairs (“Seller Actions”), including ensuring that all security requirements are met before such actions are to be carried out. If the Seller is unable to access the place agreed for Seller Actions at the time agreed then, without prejudice to any other right or remedy available to the Seller, the Seller may charge the Buyer for (i) its costs incurred in attempting the Seller Actions; and (ii) any additional costs incurred by the Seller in carrying out the Seller Actions to or at an alternative place or at an alternative time.

7 Risk and Property

7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:

7.1.1 in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or

7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer fails to take delivery of the Goods, the time when the Seller has attempted delivery of the Goods.

7.2 Title in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.

7.3 Until title in the Goods passes to the Buyer, the Buyer shall:

7.3.1 keep the Goods separate from other goods held by the Buyer and third parties so that they remain readily identifiable as the Seller’s property;
7.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
7.3.4 notify the Seller immediately if it becomes subject to any of the events listed in clause 12.1.1 to clause 12.1.4; and
7.3.5 give the Seller such information as the Seller may reasonably require from time to time relating to:
• the Goods; and
• the ongoing financial position of the Buyer.
7.4 Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.

7.5 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so immediately, to enter any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.

7.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

8 Warranty

8.1 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from delivery.

8.2 Subject to clause 8.3, if:

8.2.1 the Buyer gives notice in writing to the Seller during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 8.1;

8.2.2 the Seller is given a reasonable opportunity of examining such Goods; and

8.2.3 the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Buyer’s cost,

the Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. These Conditions (including the warranty in clause 8.1) shall apply to any replacement goods, spare parts, repairs or modifications and the warranty in clause 8.1 shall apply from the date of delivery of such spare parts or replacement goods or the date on which the repair or modification is carried out.

8.3 The Seller shall not be liable for the Goods’ failure to comply with the warranty set out in clause 8.1 in any of the following events:

8.3.1 the Buyer makes any further use of such Goods after giving notice in accordance with clause 8.2;

8.3.2 the defect arises as a result of the Seller not following any drawing, design or specification supplied by the Buyer;

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

8.3.4 the defect arises during unloading;

8.3.5 the Buyer alters or repairs such Goods without the written consent of the Seller;

8.3.6 the defect arises as a result of fair wear and tear, willful damage, negligence or abnormal storage or working conditions; or

8.3.7 the Goods differ from their description or the specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

8.4 The Seller shall have no liability under the warranty in clause 8.1 if the total price for the Goods has not been paid by the due date for payment.

8.4.1 The warranty in clause 8.1 does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.

8.5 Subject as expressly provided in these Conditions and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act l977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

8.6 Where the Goods are sold under a consumer transaction (as defined by the Sale of Goods Act 1979) the statutory rights of the Buyer are not affected by these Conditions.

9 Limitation of Liability

9.1 The Seller has obtained public and product liability insurance cover in respect of its own legal liability for individual claims not exceeding £5,000,000 per claim.
9.2 The limits and exclusions in this clause reflect the insurance cover the Seller has been able to arrange and the Buyer is responsible for making its own arrangements for the insurance of any excess loss.
9.3 The restrictions on liability in this clause 9 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.4 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
9.4.1 death or personal injury caused by negligence;
9.4.2 fraud or fraudulent misrepresentation;
9.4.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
9.4.4 defective products under the Consumer Protection Act 1987.
9.4.5 Subject to clause 9.3, the Seller’s total liability to the Buyer shall not exceed £3,000,000.

9.5 Subject to clause 9.3, the following types of loss are wholly excluded:

9.5.1 loss of profits;

9.5.2 loss of sales or business;

9.5.3 loss of agreements or contracts;

9.5.4 loss of anticipated savings;

9.5.5 loss of use or corruption of software, data or information;

9.5.6 loss of or damage to goodwill; and

9.5.7 indirect or consequential loss.

10 Force Majeure

The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations under the Contract, if the delay or failure results from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.

11 Indemnity

11.1 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the use of any drawing, design or specification supplied by the Buyer, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:

11.1.1 the Seller is given full control of any proceedings or negotiations in connection with any such claim;

11.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;

11.1.3 except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld);

11.1.4 the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);

11.1.5 the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and

11.1.6 without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.

12 Insolvency of Buyer

12.1 If:

12.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or

12.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or

12.1.3 the Buyer ceases, or threatens to cease, to carry on business; or

12.1.4 the Seller reasonably believes that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly,

then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

13 Export Terms

13.1 In these Conditions `Incoterms®’ means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms® shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, these Conditions shall prevail.

13.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 13 shall apply notwithstanding any other provision of these Conditions.

13.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.

13.4 Unless otherwise agreed in writing between the Buyer and the Seller or set out in these Conditions, the Goods shall be delivered FOB the air or sea port of shipment and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979, save that any costs arising in connection with additional documentation required for export (including translations of manuals to the language of destination) shall be borne by the Buyer.

13.5 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.

13.6 Payment of all amounts due to the Seller shall be made by irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by a bank in the country in which the Buyer is located acceptable to the Seller or, if the Seller has agreed in writing on or before acceptance of the Order to waive this requirement, by acceptance by the Buyer and delivery to the Seller of a bill of exchange drawn on the Buyer payable 60 days after sight to the order of the Seller at any branch of a UK bank or equivalent bank in the country in which the Buyer is located, as agreed with the Seller.

14 General

Assignment and other dealings

14.1 The Seller may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

14.2 The Buyer may not assign, transfer, mortgage, charge, subcontract, delegate, 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 Seller.

Confidentiality

14.3 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, except as permitted by clause 14.4.

14.4 Each party may disclose the other party’s confidential information:

14.4.1 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 the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with clauses 14.3 to 14.5; and

14.5 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

14.6 Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

Entire Agreement

14.7 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.

14.8 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

Notices

14.9 Any notice required or permitted to be given under these Conditions:

14.9.1 shall be in writing and shall be:

• delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

• sent by email to the address specified in the Order.

14.9.2 deemed to have been received:

• if delivered by hand, on signature of a delivery receipt;

• 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 or at the time recorded by the delivery service; and

• if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume (in this clause 14.9.2, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt).

This clause 14.9 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

Waiver

14.10 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.

Severance

14.11 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 14.11 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

Variation

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

Third Party Rights

14.13 The Contract does not give rise to any rights under the Contract (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

Dispute Resolution

14.14 If there is any dispute relating to these Conditions, the dispute may be referred to the General Manager of the Seller and a person of equivalent standing in the Buyer, who shall negotiate in good faith to attempt to resolve any such dispute.

14.15 If a dispute remains unresolved 30 days after a party notifies the other party of the dispute, the parties shall attempt to settle the dispute through a recognised mediation procedure. Neither party shall unreasonably withhold or delay agreement to the selection of a mediator and recognised mediation procedure suggested by the other party.

14.16 Any dispute arising under or in connection with these Conditions or the sale of the Goods that is not resolved following the procedures set out in clauses 14.14 and 14.15 may be referred by the Seller to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of the Law Society.

Governing Law and Jurisdiction

14.17 The 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 and construed in accordance with the law of England.

14.18 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.

If you have any questions or queries relating to Semmco Limited Terms & Conditions of Sale please contact sales@semmco.com

 

Semmco Life Protection Systems Limited

SEMMCO LIFE PROTECTION SYSTEMS: TERMS & CONDITIONS OF SALE

1 Interpretation

1.1 In these Conditions

`Buyer’ means the person who accepts a quotation for the sale of the Goods or whose order for Goods is accepted by the Seller.

`Conditions’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.

`Contract’ means the contract for the purchase and sale of the Goods in accordance with these Conditions.

‘Force Majeure Event’ means any circumstance not within a party’s reasonable control including:
(a) acts of God, flood, drought, 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) events and circumstances directly related to the withdrawal of the United Kingdom from the European Union;
(e) nuclear, chemical or biological contamination or sonic boom;
(f) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
(g) collapse of buildings, fire, explosion or accident; and
(h) interruption or failure of utility service.

`Goods’ means the goods (including any instalment of the goods or any parts for them) specified on the order form or quotation to which these conditions are attached.

‘Order’ means the Buyer’s order for the Goods, as set out in the Buyer’s purchase order form which is accepted in writing by the Seller, or the Buyer’s written acceptance of the Seller’s quotation.

`Seller’ means Semmco LPS Limited a limited company registered in England with registration number 9240524 whose registered address is at 9 Kestrel Way, Goldsworth Park Trading Estate, Woking GU21 3BA, UK.

1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.

1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.

1.4 A reference to “writing” or “written” includes email.

1.5 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.6 A reference to a party includes its personal representatives, successors and permitted assigns.

2 Basis of the Sale

2.1 The Seller shall sell, and the Buyer shall purchase, the Goods in accordance with the Order, subject to these Conditions.

2.2 These Conditions shall apply to the Contract to the exclusion of any other terms and conditions that the Buyer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.3 A quotation for the Goods by the Seller does not constitute a legal offer and the Seller reserves the right to withdraw or amend any quotation at any time before the Seller’s acceptance of the Buyer’s order.

2.4 Any samples, drawings, descriptive matter or advertising produced by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.

2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.

3 Orders and Specifications

3.1 No Order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’s authorised representative.

3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.

3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Order. Unless specifically included in the Order, installation, demonstration and delivery are not included in the price quoted and will be charged in addition at the Seller’s standard rates. At the request of the Buyer, certified training may also be added to the Order.

3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all liabilities, loss, damages, costs and expenses (including any direct, indirect, or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Seller in connection with, or paid or agreed to be paid by the Seller in settlement of any claim made against the Seller for, any actual or alleged infringement of any third party’s patent, copyright, design, trade mark or other industrial or intellectual property rights arising out of or in connection with the Seller’s use of the Buyer’s specification. This clause 3.4 shall survive termination of the Contract.

3.5 The Seller reserves the right to make any changes in the specification of the Goods if required by any statutory or regulatory requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.

3.6 If the United Kingdom’s withdrawal from the European Union has a material effect on the ability of the Seller to fulfil the Order such that it is no longer commercially viable for the Seller to do so on the terms agreed, following consultation with the Buyer, the Seller may:

3.6.1 cancel the Order in full and will refund any part of the price already paid to the Buyer; or

3.6.2 increase the price to include the additional costs incurred by it as a result of the withdrawal of the United Kingdom from the European Union.

3.7 The Buyer may, at any time prior to collection / delivery, cancel an Order by written notice to the Seller. If the Buyer cancels an Order, the Buyer shall indemnify the Seller in full against all liabilities, loss, damages, costs and expenses (including any direct, indirect, or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Seller as a result of cancellation, with a minimum amount payable to the Seller of 20 per cent of the agreed price for the Order (including all delivery charges and other expenses of the Seller for which the Buyer has agreed to be responsible).

4 Price of the Goods

4.1 The price of the Goods shall be the price specified in the Order or, where there is no such price specified, the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom, the Seller’s published export price list shall apply.

4.2 The minimum Order price is £25 plus VAT.

4.3 The currency chosen at the time of quotation shall be the currency for the Order. If the Buyer’s purchase order form states a different currency to that stated in the quotation, an additional charge of £250 shall apply.

4.4 All prices quoted are valid for 30 days from the date of issue of the quotation only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.

4.5 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to:

4.5.1 any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture);

4.5.2 any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer; or

4.5.3 any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.

4.6 Except as otherwise stated in a quotation or any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.

4.7 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller at the prevailing rate.

4.8 The cost of pallets and returnable containers will be charged to the Buyer in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned undamaged to the Seller before the due payment date.

5 Terms of Payment

5.1 Subject to paragraph 5.2, the Seller may invoice the Buyer for the Goods on, or at any time after, an Order and before or after delivery of the Goods.

5.2 If the Goods are to be collected by the Buyer, or the Buyer fails to take delivery of the Goods at the time and place agreed in writing between the Seller and the Buyer the Seller may invoice the Buyer at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has attempted delivery of the Goods.
5.3 The Buyer shall pay the price of the Goods within 30 days of the date of the Seller’s invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. Time for payment shall be of the essence of the Contract.
5.4 Receipts for payment will be issued only upon request.

5.5 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:

5.5.1 cancel the contract or suspend any further deliveries to the Buyer;

5.5.2 allocate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported allocation by the Buyer); and/ or

5.5.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of four per cent per annum above Lloyds TSB base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

5.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

6 Delivery

6.1 Unless otherwise agreed in writing, the Buyer shall collect the Goods at the Seller’s premises within 5 business days or a pre-arranged time agreed by both parties after the Seller has notified the Buyer that the Goods are ready for collection. Delivery is completed on the completion of the unloading of the Goods at the delivery location.

6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.

6.3 Where the Goods are to be delivered in installments, each delivery shall constitute a separate contract. Any failure or delay by the Seller to deliver any one or more of the installments or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to cancel any other instalment.

6.4 If the Seller fails to deliver the Goods (or any installment) for any reason the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer of obtaining replacement goods of similar description and quality in the cheapest available market, less the price of Goods. The Seller shall have no liability for any failure to deliver the Goods to the extent such failure is caused by a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

6.5 If the Buyer fails to take delivery of the Goods at the agreed time and place stated for delivery (otherwise than by reason of Force Majeure) then, without prejudice to any other right or remedy available to the Seller, the Seller may:

6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or

6.5.2 sell the Goods at the best price readily obtainable, and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.

6.5.3 The place stated for delivery of Goods in the Order shall not be changed without the written consent of the Seller. If the Buyer wishes to change the place for delivery, the Seller may charge the Buyer for any additional costs incurred in connection with delivery to the new place.

6.5.4 The Buyer shall be responsible for ensuring that the Seller is able to access the site for delivery, installations, modifications, inspections, training, repairs or collection of the Goods for any modifications, inspections or repairs (“Seller Actions”), including ensuring that all security requirements are met before such actions are to be carried out. If the Seller is unable to access the place agreed for Seller Actions at the time agreed then, without prejudice to any other right or remedy available to the Seller, the Seller may charge the Buyer for (i) its costs incurred in attempting the Seller Actions; and (ii) any additional costs incurred by the Seller in carrying out the Seller Actions to or at an alternative place or at an alternative time.

7 Risk and Property

7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:

7.1.1 in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or

7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer fails to take delivery of the Goods, the time when the Seller has attempted delivery of the Goods.

7.2 Title in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.

7.3 Until title in the Goods passes to the Buyer, the Buyer shall:

7.3.1 keep the Goods separate from other goods held by the Buyer and third parties so that they remain readily identifiable as the Seller’s property;
7.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
7.3.4 notify the Seller immediately if it becomes subject to any of the events listed in clause 12.1.1 to clause 12.1.4; and

7.3.5 give the Seller such information as the Seller may reasonably require from time to time relating to:
• the Goods; and
• the ongoing financial position of the Buyer.

7.4 Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.

7.5 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so immediately, to enter any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.

7.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

8 Warranty

8.1 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from delivery.

8.2 Subject to clause 8.3, if:

8.2.1 the Buyer gives notice in writing to the Seller during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 8.1;

8.2.2 the Seller is given a reasonable opportunity of examining such Goods; and

8.2.3 the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Buyer’s cost,

the Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full. These Conditions (including the warranty in clause 8.1) shall apply to any replacement goods, spare parts, repairs or modifications and the warranty in clause 8.1 shall apply from the date of delivery of such spare parts or replacement goods or the date on which the repair or modification is carried out.

8.3 The Seller shall not be liable for the Goods’ failure to comply with the warranty set out in clause 8.1 in any of the following events:

8.3.1 the Buyer makes any further use of such Goods after giving notice in accordance with clause 8.2;

8.3.2 the defect arises as a result of the Seller not following any drawing, design or specification supplied by the Buyer;

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

8.3.4 the defect arises during unloading;

8.3.5 the Buyer alters or repairs such Goods without the written consent of the Seller;

8.3.6 the defect arises as a result of fair wear and tear, willful damage, negligence or abnormal storage or working conditions; or

8.3.7 the Goods differ from their description or the specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

8.4 The Seller shall have no liability under the warranty in clause 8.1 if the total price for the Goods has not been paid by the due date for payment.

8.4.1 The warranty in clause 8.1 does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.

8.5 Subject as expressly provided in these Conditions and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act l977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

8.6 Where the Goods are sold under a consumer transaction (as defined by the Sale of Goods Act 1979) the statutory rights of the Buyer are not affected by these Conditions.

9 Limitation of Liability

9.1 The Seller has obtained public and product liability insurance cover in respect of its own legal liability for individual claims not exceeding £5,000,000 per claim.
9.2 The limits and exclusions in this clause reflect the insurance cover the Seller has been able to arrange and the Buyer is responsible for making its own arrangements for the insurance of any excess loss.
9.3 The restrictions on liability in this clause 9 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.4 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
9.4.1 death or personal injury caused by negligence;
9.4.2 fraud or fraudulent misrepresentation;
9.4.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
9.4.4 defective products under the Consumer Protection Act 1987.
9.4.5 Subject to clause 9.3, the Seller’s total liability to the Buyer shall not exceed £3,000,000.

9.5 Subject to clause 9.3, the following types of loss are wholly excluded:

9.5.1 loss of profits;

9.5.2 loss of sales or business;

9.5.3 loss of agreements or contracts;

9.5.4 loss of anticipated savings;

9.5.5 loss of use or corruption of software, data or information;

9.5.6 loss of or damage to goodwill; and

9.5.7 indirect or consequential loss.

10 Force Majeure

The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations under the Contract, if the delay or failure results from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.

11 Indemnity

11.1 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the use of any drawing, design or specification supplied by the Buyer, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:

11.1.1 the Seller is given full control of any proceedings or negotiations in connection with any such claim;

11.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;

11.1.3 except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld);

11.1.4 the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);

11.1.5 the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim; and

11.1.6 without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.

12 Insolvency of Buyer

12.1 If:

12.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or

12.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or

12.1.3 the Buyer ceases, or threatens to cease, to carry on business; or

12.1.4 the Seller reasonably believes that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly,

then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

13 Export terms

13.1 In these Conditions `Incoterms®’ means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms® shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, these Conditions shall prevail.

13.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 13 shall apply notwithstanding any other provision of these Conditions.

13.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.

13.4 Unless otherwise agreed in writing between the Buyer and the Seller or set out in these Conditions, the Goods shall be delivered FOB the air or sea port of shipment and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979, save that any costs arising in connection with additional documentation required for export (including translations of manuals to the language of destination) shall be borne by the Buyer.

13.5 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.

13.6 Payment of all amounts due to the Seller shall be made by irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by a bank in the country in which the Buyer is located acceptable to the Seller or, if the Seller has agreed in writing on or before acceptance of the Order to waive this requirement, by acceptance by the Buyer and delivery to the Seller of a bill of exchange drawn on the Buyer payable 60 days after sight to the order of the Seller at any branch of a UK bank or equivalent bank in the country in which the Buyer is located, as agreed with the Seller.

14 General

Assignment and other dealings

14.1 The Seller may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

14.2 The Buyer may not assign, transfer, mortgage, charge, subcontract, delegate, 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 Seller.

Confidentiality

14.3 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, except as permitted by clause 14.4.

14.4 Each party may disclose the other party’s confidential information:

14.4.1 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 the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with clauses 14.3 to 14.5; and

14.5 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

14.6 Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

Entire Agreement

14.7 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.

14.8 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 the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

Notices

14.9 Any notice required or permitted to be given under these Conditions:

14.9.1 shall be in writing and shall be:

• delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

• sent by email to the address specified in the Order.

14.9.2 deemed to have been received:

• if delivered by hand, on signature of a delivery receipt;

• 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 or at the time recorded by the delivery service; and

• if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume (in this clause 14.9.2, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt).

This clause 14.9 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

Waiver

14.10 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.

Severance

14.11 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 14.11 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

Variation

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

Third Party Rights

14.13 The Contract does not give rise to any rights under the Contract (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

Dispute Resolution

14.14 If there is any dispute relating to these Conditions, the dispute may be referred to the General Manager of the Seller and a person of equivalent standing in the Buyer, who shall negotiate in good faith to attempt to resolve any such dispute.

14.15 If a dispute remains unresolved 30 days after a party notifies the other party of the dispute, the parties shall attempt to settle the dispute through a recognised mediation procedure. Neither party shall unreasonably withhold or delay agreement to the selection of a mediator and recognised mediation procedure suggested by the other party.

14.16 Any dispute arising under or in connection with these Conditions or the sale of the Goods that is not resolved following the procedures set out in clauses 14.14 and 14.15 may be referred by the Seller to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of the Law Society.

Governing Law and Jurisdiction

14.17 The 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 and construed in accordance with the law of England.

14.18 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.

 

For information about payment terms, lead times and delivery options please contact lps@semmco.com

 

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