Terms & Conditions
CONDITIONS OF SALETERMS AND CONDITIONS1. Interpretation 1.1 In these Conditions: "BUYER" means the person or organisation who accepts a quotation from the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller "GOODS" means the goods (including any installment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions "SELLER" means Vacuum Systems Ltd, Unit 11, Lexden Lodge Ind Est, Jarvis Brook, Crowborough, East Sussex, TN6 2BQ, United Kingdom "CONDITIONS" means these standard terms and conditions of sale. Unless the context otherwise requires, the expression also includes any special written terms and conditions agreed between the Buyer and the Seller "CONTRACT" means the contract for the purchase and sale of the Goods "WRITING" Includes delivery by post, for signed documents, and e-mail for draft documents 1.2 Statutory references 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. 2. Basis of the sale 2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with: - Any written quotation of the Seller which is accepted by the Buyer, or ii) Any written order of the Buyer which is accepted by the Seller. In either case these Conditions shall apply. They shall govern the Contract to the exclusion of, and to prevail over, any other terms and conditions purportedly made or accepted. 2.2 Only written variations shall be effective to change these Conditions and only then if made between the authorised representatives of the Buyer and the Seller. 2.3 Quoted prices for Products and/or Services do not include: i) Value added tax (“VAT”) or sales taxes ii) Import duty, license fees and customs tariff referred to in Clause 3. iii) Delivery Charges iv) The cost of installing and commissioning the Products and the cost of consumables used in the commissioning of Vacuum Systems Ltd equipment. v) Travelling and other expenses incurred in connection with the provision of Services, which shall be added to price. 3. Orders and specifications 3.1 No order submitted by the Buyer shall be treated as 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: - i) Ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and ii) 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 either: i) The Seller’s quotation (if accepted by the Buyer) or ii) The Buyer’s order (if accepted by the Seller). 3.4 This clause applies if the Goods are to be manufactured or (if 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 loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification. 3.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC 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 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation. 4. Price of the goods 4.1 The price of the Goods shall be 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. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer. 4.2 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 any factor beyond the control of the Seller. Examples of this (but without limitation) include: - i) Any foreign exchange fluctuation, currency regulation, alteration of duties, ii) Significant increases in the costs of labour, materials or other costs of manufacture, iii) Any change in delivery dates, quantities or specifications for the Goods requested by the Buyer iv) Any delay caused by any instructions of the Buyer v) Failure of the Buyer to give the Seller adequate information or instructions. 4.3 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. This applies unless otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller. 4.4 All prices are quoted exclusive of any applicable Value Added Tax, which the Buyer shall be additionally liable to pay to the Seller. 5. Terms of payment 5.1 The Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after their delivery, unless: - i) The Goods are to be collected by the Buyer or ii) The Buyer wrongfully fails to take delivery of the Goods, in which either event the Seller shall be entitled to invoice the Buyer for the price 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 tendered their delivery). 5.2 Clause 5.1 applies in the absence of any special terms agreed in Writing between the Buyer and the Seller. 5.3 The Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deductions) within 30 days of the date of the Seller’s invoice. 5.4 The Seller shall be entitled to recover the price even though delivery may not have taken place and the property in the Goods may not have passed to the Buyer. 5.5 The time of payment of the price shall be of the essence of the Contract. 5.6 Receipts for payment will be issued only upon request. 5.7 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:- i) Cancel the contract or suspend any further deliveries to the Buyer; ii) Appropriate 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 appropriation by the Buyer); and iii) Charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 4% per cent per annum above Lloyds Bank 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). 6. Delivery 6.1 Place of Delivery. Vacuum Systems Ltd shall deliver Products and supply Services to any address in the specified in the Contract. The Purchaser shall, at its risk and expense, off-load all Products and shall be responsible for any expense arising from any delay in such offloading and shall indemnify Vacuum Systems Ltd accordingly. The Purchaser shall be responsible for arranging lifting tackle where required to off-load the Products. 6.2 Time of Delivery. Vacuum Systems Ltd shall use all reasonable efforts to deliver Products and supply Services in accordance with quoted times but shall not be liable for any loss or damage arising from late delivery or supply of Services and delay shall not entitle the Purchaser to rescind the Contract. 6.4 Place of Delivery. Where the Products are to be delivered in instalments, failure by Vacuum Systems Ltd to deliver one or more instalment or any claims by the Purchaser in respect of one or more instalment shall not entitle the Purchaser to treat the Contract as whole as repudiated. 7. Risk and property 7.1 Products. Risk of loss or damage to each Product will pass to the Purchaser on its delivery in accordance with Clause 6.1 7.2 Legal ownership of the Products is to remain vested in Vacuum Systems Ltd. until the Contract price has been paid in full, and until full payment has been received by Vacuum Systems Ltd, under any other contract with the Purchaser for which payment is outstanding. 7.3 Possession of Products. If the Purchaser obtains possession of the Products prior to payment, the Purchaser shall hold the Products in a separate and identifiable form as bailee and fiduciary agent for Vacuum Systems Ltd. 7.4 Failure to pay the full amount when due, shall give Vacuum Systems Ltd or its employees or agents, the right to repossess the products (and enter the Purchaser’s premises for that purpose if necessary), with or without notice and without liability and at its option, to avail itself of any other legal remedy. 7.5 Event of Repossession. Vacuum Systems Ltd shall have the right to sell the Products once they have been re-possessed. 7.6 Notwithstanding this Clause 7.5, Vacuum Systems Ltd shall be entitled to maintain an action for the Contract price at any time after the date when payment is due. 7.7 Contact of Third Party. The Purchaser may contact to sell the Products to a third party in return for valuable consideration provided that the Purchaser shall account in a fiduciary capacity to Vacuum Systems Ltd for the proceeds of sale (to the extent of a Purchasers indebtedness to Vacuum Systems Ltd), keeping the same separate and identifiable from its other money. 7.8 Location of Equipment. Where the products are attached to either buildings or plant or machinery, the Purchaser agrees that it is not its intention that the Products thereby become fixtures and fittings or part of the plant or machinery, but the Products shall remain as chattels and be severable from the buildings or plant or machinery. 8. Warranties and liability. 8.1 Product Specification. The specification for the Products shall be according to Vacuum Systems Ltd specified data for that product unless otherwise expressly agreed in writing by Vacuum Systems Ltd. Vacuum Systems Ltd shall ensure that the Products comply with that specification in all material respects but otherwise reserve the right to alter the products without reference to the Purchaser. 8.2 Warranty. Subject to the limitations set out in these conditions, Vacuum Systems Ltd warrants that the Products shall meet the specification referred to Clause 8.1 in all material respects. 8.3 Warranty Claims. Any claims under sub-clause 8.3 must be made by the Purchaser in writing and received by Vacuum Systems Ltd within the Warranty Period (as defined below) 8.4 “Warranty Period” means the period of 12 months (6 months in the case of reconditioned Products and repairs / as stated in the Quotation) commencing from the date of delivery (or repair) or if the Products are installed and commissioned by Vacuum Systems Ltd from the date of acceptance. If a product is replaced or repaired under warranty, the Warranty period shall be the unexpired portion of the original warranty. On receipt of a claim under this sub-clause Vacuum Systems Ltd shall be entitled to inspect the Product and Vacuum Systems Ltd shall direct the Purchaser either: (i) To return the product or parts thereof (carriage and insurance paid by the Purchaser) to Vacuum Systems Ltd – OR (ii) To receive Vacuum Systems Ltd engineers at the place where the Product is installed Vacuum Systems Ltd may require the Purchaser to bear the travel and accommodation expenses of such engineers. 8.5 Specification of Equipment. If Vacuum Systems Ltd is satisfied that the Product did not meet the specification in all material aspects (fair wear and tear expected / exemption for consumables such as),in which Vacuum Systems Ltd agrees, at its discretion, to repair and replace the Products (or appropriate part thereof) or to issue a credit note in respect of such Products provided that each of the following are satisfied: - (i) The claim arose during the Warranty Period (ii) Any claim by the Buyer, which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification, shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or, the defect or failure was not apparent on reasonable inspection, within a reasonable time after discovery of the defect or failure. (iii) The Products have only been operated under normal operating conditions within their design parameters (iv) If requested by Vacuum Systems Ltd the Products are returned to Vacuum Systems Ltd premises at the Purchasers expense. (v) Any Products or parts of Products replaced shall become the property of Vacuum Systems Ltd and if not returned to Vacuum Systems Ltd, Vacuum Systems Ltd shall be entitled to charge for the replacements. (vi) No work or repairs whatsoever have been carried out on the Products of any part thereof without Vacuum Systems Ltd prior consent. (vii) The defect has not arisen from a design made, furnished or specified by the Purchaser. (viii) The Products have been assembled or incorporated into other goods only in accordance with any instructions issued by Vacuum Systems Ltd and within the Products design parameters. (ix) The defect has not arisen from a design modified by the Purchaser; AND (x) The defect has not arisen from an item manufactured by a person other than Vacuum Systems Ltd, the Purchaser shall only be entitled to the benefit of the warranty or guarantee provided by such manufacturer to Vacuum Systems Ltd. Vacuum Systems Ltd may require the Purchaser to bear any insurance, freight or other charges incurred in shipping any spare or exchange parts or the repaired or replacement Product to the Purchaser. (xi) This clause excludes consumables within the aspects of Clause 8.5 of the Warranty at the discretion of Vacuum Systems Ltd, which although not an extensive list are ; heating elements, filaments, bearings, gaskets, seals, detector, multi-channel plates, x-ray anodes, windows, vacuum pumps (including Oil if applicable), feedthroughs, bellows, damages leads, electrical / electronic components, vacuum gas valves & any third party components. 8.6 Due Care. Vacuum Systems Ltd shall take reasonable care and skill in the provision of the services. 8.7 Patents and Intellectual Property Rights Vacuum Systems Ltd indemnifies the Purchaser against loss arising from any claim that any Product infringes a third-parties patent or other industrial property rights, provided that the Purchaser shall immediately notify Vacuum Systems Ltd of any such claim and Vacuum Systems Ltd shall have the sole conduct of any proceedings. At Vacuum Systems Ltd request and expense, the Purchaser will render assistance to Vacuum Systems Ltd in defending such claims. In addition the Purchaser does not give out drawings supplied by Vacuum Systems Ltd, either in its original form or in a copied format, or any other VSL Material to a third party unless by written consent from Vacuum Systems Ltd. 8.8 Injury to Persons and Title Vacuum Systems Ltd accepts liability for death and personal injury to the extent that it results from the negligence of Vacuum Systems Ltd, its employees (in the course if their employments) and its agents (in the course of agency) and for any breach of the statutory undertaking as to title, quiet possession and freedom of encumbrance. 8.9 Limitation of Liability Save as expressly provided in these Conditions, no condition, warranty or other term, express or implied (by statute or otherwise) is given by Vacuum Systems Ltd that the Products are of any particular quality or will enable the Purchaser to attain any particular performance or result, or will be suitable for any particular purpose or use under specific conditions or will provide any particular capacity, notwithstanding that the requirements for such performance, result or capacity or that such particular purpose or conditions may have been known (or ought to have been known) to Vacuum Systems Ltd employees or agents. If Vacuum Systems Ltd is held legally liable to the Purchaser in relation to a Contract, the total liability of Vacuum Systems Ltd, for all claims, shall not be exceed the amount of all sums received by Vacuum Systems Ltd, under the relevant Contract, less all expenses incurred and sums paid to third parties in connection with that Contract. Vacuum Systems Ltd shall in no circumstances be liable for any costs, losses, or expenses of whatever nature arising from any interruption of the Purchaser’s business, or any economic or consequential losses whatsoever. The limitation in this paragraph shall not apply in respect of any liability accepted by Vacuum Systems Ltd in Clause 8.8 or under Part One of the Consumer Protection Act 1987. If any exclusion or limitation of liability, or any other provision contained in the Contract is held invalid under any applicable statute or rule of law, it shall to that extent be deemed omitted, but if Vacuum Systems Ltd thereby becomes liable for any liability which would otherwise have been excluded or limited, such liability shall be subject to the other exclusions, limitations or provisions set out in these conditions. 8.10 Liability of Seller Part 1. The Seller shall not be liable to the Buyer for any breach of representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any of the following which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer: - i) Indirect, special or consequential loss or damage (whether for loss of profit or otherwise), ii) Costs, expenses or other claims for compensation whatsoever and whether caused by the negligence of the Seller, its employees or agents or otherwise. The entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods. 8.11 Liability of Seller Part 1. Clause 8.10 shall not apply in respect of death or personal injury caused by the Seller’s negligence or where expressly provided in these Conditions. 8.12 Liability of Seller Part 1. 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 the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:- i) Act of God, explosion, flood, tempest, fore or accident; ii) War or threat of war, sabotage, insurrection, civil disturbance or requisition; iii) Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; iv) Import or export regulations or embargoes; v) Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party); vi) Difficulties in obtaining raw materials, labour, fuel, parts or machinery; vii) Power failure or breakdown in machinery. 8.13 Consumer Protection The Purchaser shall fully indemnify Vacuum Systems Ltd against all losses, damages, costs, actions, claims, demands, fees and other expenses(legal or otherwise) Vacuum Systems Ltd may incur in consequence of the Products being (whether in whole or in part and directly or indirectly) involved in a claim under the Consumer Protection act 1987, except to the extent that the alleged defect in the Product, the subject of such claim was directly caused by an act or omission, or the negligence of Vacuum Systems Ltd. Where the Products are sold, or Services supplied under a consumer transaction (as defined by the Consumer Transactions Restrictions on Statements Order, under the Consumer Protection act 1987), the statutory rights of the Purchaser are not affected by these Conditions. 9. Indemnity 9.1 This clause applies 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. Unless the claim arises from the use of any drawing, design or specification supplied by the Buyer, the Seller shall indemnify the Buyer against: - i) All loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or ii) Paid or agreed to be paid by the Buyer in settlement of the claim, provided that: - 9.2 The Seller is given full control of any proceedings or negotiations in connection with any such claim; 9.3 The buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations; 9.4 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); 9.5 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 due under any such policy or cover (which the Buyer shall use its best endeavours to do); 9.6 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 9.7 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. 10. Insolvency of Buyer 10.1 This clause applies if:- i) The Buyer makes any voluntary arrangements with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or ii) An encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or iii) The Buyer ceases, or threatens to cease, to carry on business; or iv) The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly. 10.2 If Clause 10.1 applies 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. 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. 11. Export terms 11.1 In this 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. If there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail. 11.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 11.1 shall (subject to any special terms agreed in Writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions. 11.3 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 on them. 11.4 Unless otherwise agreed in Writing between the Buyer and the Seller, the Goods shall be delivered by the air or sea port of shipment. 11.5 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. 11.6 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 acceptable to the Seller or, If the Seller has agreed in Writing on or before acceptance of the Buyer’s 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 as may be specified in the bill of exchange. 11.7 The Buyer undertakes: - i) Not to offer the Goods for resale in any other country notified by the Seller to the Buyer at or before the time the Buyer’s order is placed. ii) Not to sell the Goods to any person if the Buyer knows or has reason to believe that that person intends to resell the Goods in any such country. 12. General 12.1 Giving Notice. Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing and i) Addressed to that other party at its registered office or principal place of business or ii) At such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. 12.2 Refunds. No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision. 12.3 Validity of Statutes in the Conditions of Sale. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected. 12.4 Legal Basis. The laws of England shall govern the Contract, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts. |