Terms and Conditions

1.            Interpretation

1.1       In these Terms:-

"Buyer"                        Shall mean EML Limited

“Contract”                     Shall mean the contract for the sale and purchase of the Goods and the supply of the Services incorporating these Terms

“Delivery Address”       Shall mean the address stated in the Order

"Goods"                      Shall mean the goods (including any instalment of the goods or any part of them) described in the Order

“Price”                        Shall mean the price of the Goods or the charge for the Services or both (as applicable)

"Seller"                      Shall mean the person, firm or company so described in the Buyer’s purchase order (“Order”) to which these
                                  Terms are annexed

“Services”                   means the services (if any) described in the Order and all services supplied by the Seller ancillary to the production
                                  and sale of the Goods

“Terms”                       Shall mean the standard terms of purchase set out in this document and (unless the context requires otherwise) includes
                                   any special terms agreed in writing between the Buyer and the Seller

2.         Basis of Purchase

2.1       The Order constitutes an offer by the Buyer to purchase the Goods and/or acquire the Services subject to these Terms

2.2       These Terms shall apply to the Contract to the exclusion of any other terms on which any quotation has been given to the Buyer or subject to which the Order is accepted or purported to be accepted by the Seller

2.3       The Order will lapse unless unconditionally accepted by the Seller in writing within seven days of the date of the Order

2.4       No variation to the Order or these Terms shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller

3.            Specifications

3.1       The quantity, quality and description of the Goods and Services shall be as specified in the Order or in any applicable specification supplied by the Buyer to the Seller or agreed in writing by the Buyer

3.2       The Seller shall not substitute materials in the production of the Goods unless agreed in writing by the Buyer

3.3            Subject to clause 3.4 the Buyer shall be responsible for ensuring the accuracy of any specification it supplies to the Seller and for giving all information requested by the Seller within a sufficient time to enable the Seller to perform the Contract provided always that the Buyer shall not be responsible under this clause 3.3 for any losses arising from the Seller’s failure to identify and act upon any inaccuracy in any specification supplied by the Buyer where it would have been reasonable for the Seller to have identified and acted upon such inaccuracy

3.4       The Seller reserves the right to make any changes in the specification of the Goods and the Services which are required to conform with any applicable safety or other statutory or EC requirements

3.5       Any specification supplied by the Buyer to the Seller or specifically produced by the Seller for the Buyer in connection with the Contract together with the copyright, design rights or any other intellectual property rights in the specification shall be the exclusive property of the Buyer and the Seller assigns with full title guarantee to the Buyer all such copyright, design rights and other intellectual property rights for no further consideration subject only to the payment of the Price

3.6       The Seller shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods

3.7       The Seller shall not unreasonably refuse any request by the Buyer to inspect and test the Goods during manufacture, processing or storage at the premises of the Seller or any third party prior to despatch and the Seller shall provide the Buyer with all facilities reasonably required for inspection and testing

3.8       If as a result of inspection or testing the Buyer is not satisfied that the Goods will comply in all respects with the Contract and the Buyer so informs the Seller within seven days of inspecting or testing the Seller shall take such steps as are necessary to ensure compliance and in addition the Buyer shall have the right to require and witness further testing and inspection

3.9       The Goods shall be marked, packed and presented in accordance with the Buyer’s instructions and any applicable regulations or requirements of the carrier and properly packed and secured so as to reach their destination in an undamaged condition

3.10     The Seller may at its discretion submit a sample of Goods to the Buyer for approval before executing the bulk of the Order. Where a sample is submitted, Orders should only be fully executed on receipt of approval of the sample in writing.  All Goods in respect of which a sample is so approved will be deemed to have been satisfactorily tested by the Buyer and to be suitable for the purposes for which the Buyer requires them

4.            Confidentiality

4.1       The Seller acknowledges that in order that it may produce and sell the Goods and/or perform the Services the Buyer may disclose or may authorise a third party to disclose confidential information to the Seller and that the Buyer wishes to protect such information, whether disclosed visually, orally or in the form of drawings and other written materials (“Information”)

4.2       The Seller agrees:-

4.2.1    not to use the Information otherwise than for the purpose for which it was disclosed and any other purpose expressly authorised by the Buyer in writing;

4.2.2    only to disclose the Information, and then only to the extent  necessary, to those of the Seller’s employees to whom disclosure is necessary for the purpose for which the Information was disclosed;

4.2.3    not to disclose the Information to any third party except for the purpose for which it was disclosed and shall ensure that any such third party is bound by suitable confidentiality obligations prior to the disclosure of the Information;

4.2.4    not to copy or reduce the Information to writing except as may be reasonably necessary for the purpose for which it was disclosed; and

4.2.5    to return to the Buyer on demand all Information which has been supplied to or acquired by the Seller in the form of drawings and other documentation, including all copies thereof, and to destroy  all notes and other written reports which have been made pursuant to clause 4.2.1 containing Information, except as authorised in writing by the Buyer or as necessary to complete any outstanding obligations under the Contract (whereupon such items shall be returned on completion thereof), and the Seller shall be responsible for ensuring that its employees fulfil the same

4.3            Information shall be subject to the conditions of non-disclosure and non-use as set out above until such time  as the Information comes into the public domain otherwise than by breach of this clause 4, or the Information is received by the Seller from a bona fide third party without breach of any obligation to the Buyer

5.         Price

5.1       The Price shall be as stated in the Order and unless otherwise so stated shall be:-

5.1.1    exclusive of any applicable value added tax (which shall be payable by the Buyer subject to receipt of a VAT invoice); and

5.1.2    inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods to the Delivery Address and any duties, imposts or levies other than value added tax

5.2       No increase in the Price may be made (whether on account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior consent of the Buyer in writing

5.3       The Buyer shall be entitled to all discounts for prompt payment, bulk purchase or volume of purchase customarily granted by the Seller whether or not shown on its own terms of sale

6.         Terms of Payment

6.1       The Seller may invoice the Buyer on or at any time after delivery of the Goods or completion of the Services as the case may be and each invoice shall quote the number of the Order

6.2       Unless otherwise stated in the Order the Buyer shall pay for the Goods and the Services within thirty days after the end of the month of receipt by the Buyer of the Seller’s invoice or if later after acceptance of the Goods or Services in question by the Buyer

6.3       The Buyer may set off against the Price any sums owed to the Buyer by the Seller

6.4       Time for payment shall not be of the essence of the Contract

7.            Delivery

7.1       The Goods shall be delivered during the Buyer’s usual business hours to the Delivery Address on the date or within the period stated in the Order.   The Seller may be requested by the Buyer to off-load the Goods.  If so requested, the Seller shall off-load the Goods at its own risk as directed by the Buyer

7.2       Where the date of delivery of the Goods or of performance of the Services is specified after the placing of the Order the Seller shall give the Buyer reasonable notice of the delivery date

7.3       A packing note quoting the number of the Order must accompany each delivery or consignment of the Goods and must be displayed prominently

7.4       Time for delivery shall be of the essence

7.5       If the Goods are to be delivered or the Services are to be performed by instalments the Contract will be treated as a single contract and not severable and any failure by the Seller to deliver one instalment shall entitle the Buyer at its option to treat the whole Contract as repudiated

7.6       The Buyer may reject any Goods delivered which are not in accordance with the Contract and shall not be deemed to have accepted any Goods until the Buyer has had a reasonable time to inspect them following delivery or if later within a reasonable time after any latent defect in the Goods has become apparent

7.7       The Seller shall supply the Buyer in good time with any instructions or other information required to enable the Buyer to accept delivery of the Goods and performance of the Services

7.8       The Buyer shall not be obliged to return to the Seller any packaging or packing materials for the Goods whether or not any Goods are accepted by the Buyer
7.9       If the Goods are delivered to the Buyer in excess of the quantities ordered the Buyer shall not be bound to pay for the excess and any excess shall be and shall remain at the Seller’s risk and shall be returnable at the Seller’s expense

8.         Risk and Property

8.1       Risk of damage to or loss of the Goods shall pass to the Buyer on completion of delivery of the Goods to the Buyer (including off-loading and stacking)
8.2       The property in the Goods shall pass to the Buyer on delivery unless payment for the Goods is made prior to delivery when it shall pass to the Buyer once payment has been made

9.            Warranties and Liability

9.1       The Seller warrants to the Buyer that the Goods:-

9.1.1    will be of satisfactory quality (within the meaning of the Sale of Goods Act 1979 as amended) and fit for any purpose held out by the Seller or made known to the Seller in writing at the time the Order is placed;

9.1.2    will be free from defects in design, material and workmanship;

9.1.3    will correspond with any relevant specification or sample; and

9.1.4    will comply with all statutory and EC requirements and regulations relating to the sale of the Goods

9.2       The Seller warrants to the Buyer that the Services will be performed by appropriate qualified and trained personnel with due care and diligence and to such high standard of quality as it is reasonable for the Buyer to expect in all the circumstances

9.3            Without limiting any other remedy, if any Goods or Services are not supplied or performed in accordance with the Contract then the Buyer shall be entitled:-

9.2.1    to require the Seller to repair the Goods or to supply replacement Goods or Services in accordance with the Contract within seven days; or

9.2.2    at the Buyer’s sole option and whether or not the Buyer has previously required the Seller to repair the Goods or to supply any replacement Goods or Services to treat the Contract as discharged by the Seller’s breach and require the repayment of any part of the Price which has been paid; and

9.2.3    claim damages for any additional costs, loss or expenses incurred by the Buyer which are in any way attributable to the Seller’s failure to supply the Goods and Services in accordance with the Contract

9.3       The Seller shall indemnify the Buyer in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred or paid by the Buyer as a result of or in connection with:-

9.3.1    breach of any warranty given by the Seller in relation to the Goods or Services;

9.3.2    any claim that the Goods infringe or their importation, use or resale infringes the patent, copyright, design right, trade mark or other intellectual property rights of any person except to the extent that the claim arises from compliance with any specification supplied by the Buyer;

9.3.3    any liability under the Consumer Protection Act 1987 in respect of the Goods;

9.3.4    any act or omission of the Seller or its employees, agents or sub-contractors in manufacturing, supplying, delivering and installing the Goods; and

9.3.5    any act or omission of any of the Seller’s personnel in connection with the performance of the Services

9.4            Subject as expressly provided in these Terms all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law

9.5       Neither the Seller nor the Buyer shall be liable to the other 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 in relation to the Contract if the delay or failure is beyond that party’s reasonable control including but not limited to shortages of raw materials, strikes or lockouts, riots and civil commotion or acts of God, fire, theft, war and embargo

10.            Termination

10.1     The Buyer may cancel the Order in respect of all or part only of the Goods and the Services by giving notice to the Seller at any time prior to delivery or performance in which event the Buyer’s sole liability shall be to pay to the Seller fair and reasonable compensation for any work-in-progress at the time of cancellation but such compensation shall not include loss of anticipated profits or any consequential or indirect loss.
10.2     The Buyer may terminate the Contract without liability to the Seller by giving notice to the Seller at any time if:-

10.2.1  the Seller makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) 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

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

10.2.3  the Seller ceases or threatens to cease to carry on business; or

10.2.4  the Buyer reasonably apprehends that any of the events mentioned above is about to occur in relation to the Seller and notifies the Seller accordingly

11.            General

11.1     The Order is personal to the Seller and the Seller shall not assign or transfer or purport to assign or transfer to any other person any of its rights or sub-contract any of its obligations under the Contract

11.2     Any notice or other information required or permitted to be given by either party under these Terms shall be deemed to have been validly given if served personally upon that party or if sent by first class pre-paid post to the last known address of that party.  If sent by first class pre-paid post the notice shall be deemed to have been received 2 working days after the date of posting.  If served personally, then notice shall be deemed to have been received on the same day, provided it is sent within normal working hours

11.3     Each party acknowledges that these Terms contain the whole agreement between the parties in respect of the subject matter hereof

11.4     No waiver by the Buyer of any breach of these Terms by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provisions

11.5     If any provision of these Terms is declared by any judicial or any other competent authority to be void, voidable, illegal or otherwise unenforceable or indications to that effect are received by either party from any competent authority then that provision shall be limited or eliminated to the minimum extent necessary so these Terms shall otherwise remain in full force and effect and enforceable

11.6     In the event of any dispute arising out of or in connection with these Terms the parties hereby agree:-

11.6.1  to refer the dispute to ADR Group Europe Limited (or such other organisation experienced in the process of alternative dispute resolution) for the purpose of alternative dispute resolution in order to resolve the dispute by way of mediation; and

11.6.2  in the event that a resolution of the dispute is not achieved by way of mediation the parties shall be entitled to commence proceedings or take such action as they respectively consider appropriate

11.7     The Contract shall be governed by the laws of England and the parties agree to submit to the non-exclusive jurisdiction of the English courts

11.8     The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it