1. Interpretation
1.1 In these Terms:
“CONTRACT” means the contract for the sale and purchase of the Products;
“CUSTOMER” means the person firm or company who accepts the Sellers’s
Written quotation for the sale of the Products or whose Written order for the
Products is accepted by the Seller;
“PRODUCT(S)” means the product(s) (including any instalment of the product or
any part for them) which the Seller is to supply in accordance with these Terms;
“SELLER” means BN Thermic Limited whose registered office is at 34 Stephenson
Way, Three Bridges, Crawley, West Sussex, RH10 1TN, England;
“TERMS” means the standard terms of sale set out in this document and (unless
the context otherwise requires) includes any special terms agreed in Writing
between the Customer and the Seller;
“WEEE” means waste electrical and electronic equipment as defined in the WEEE
Regulation;
“WEEE REGULATION” means The Waste Electrical and Electronic Regulations 2006
(SI 2006/ 3289);
“WRITING”, and any similar expression, includes facsimile transmission but not
electronic mail or other forms of electronic communications.
1.2 A reference in these Terms to a 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 Terms are for convenience only and shall not affect their
interpretation.
2. Basis of the sale
2.1 The Seller shall sell and the Customer shall purchase the Products in accordance
with the Seller’s Written quotation (if accepted by the Customer), or the
Customer’s Written order (if accepted by the Seller), subject in either case to
these Terms, which shall govern the Contract to the exclusion of any other term
subject to which any such quotation is accepted or purported to be accepted, or
any such order is made or purported to be made, by the Customer.
2.2 No variation to these Terms shall be binding unless agreed in Writing between the
authorised representatives of the Buyer and the Seller.
2.3 The Seller’s employees or agents are not authorised to make any representations
concerning the Products unless confirmed by the Seller in Writing. In entering
into the Contract the Buyer acknowledges that it does not rely on any such
representations which are not so confirmed, but nothing in these Terms affects
the liability of either party for fraudulent misrepresentation.
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2.4 Any advice or recommendation given by the Seller or its employees or agents to
the Customer or its employees or agents as to the storage, application or use of
the Products which is not confirmed in Writing by the Seller is followed or acted
upon entirely at the Customer’s own risk, and accordingly the Seller shall not be
liable for any such advice or recommendation which is not so confirmed.
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 Customer shall be deemed to be accepted by the
Seller unless and until confirmed in Writing by the Seller’s authorised
representative.
3.2 The Customer shall be responsible to the Seller for ensuring the accuracy of the
terms of any order (including any applicable specification) submitted by the
Customer, and for giving the Seller any necessary information relating to the
Products 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 the Products and any specification for
them shall be as set out in the Seller’s quotation (if accepted by the Customer) or
the Customer’s order (if accepted by the Seller).
3.4 If the Products are to be manufactured or any process is to be applied to the
Products by the Seller in accordance with a specification submitted by the
Customer, the Customer 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 Customer’s specification.
3.5 The Seller reserves the right to make any changes in the specification of the
Products which are required to conform with any applicable statutory or E.U.
requirements or, where the Products 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
Customer except with the agreement in Writing of the Seller and on terms that
the Customer 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 Products 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. All prices
quoted are valid for 30 days only or until earlier acceptance by the Customer,
after which time they may be altered by the Seller without giving notice to the
Customer.
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4.2 The Seller reserves the right, by giving Written notice to the Customer at any
time before delivery, to increase the price of the Products to reflect any increase
in the cost to the Seller which is due to any factor beyond the control of the
Seller, any change in delivery dates, quantities or specifications for the Products
which is requested by the Customer, or any delay caused by any instructions of
the Customer or failure of the Customer to give the Seller adequate information
or instructions.
4.3 The price is exclusive of any applicable value added tax, which the Customer shall
be additionally liable to pay to the Seller.
5. Terms of payment
5.1 Subject to any special terms agreed in Writing between the Customer and the
Seller, the Seller may invoice the Customer for the price of the Products on or at
any time after delivery of the Products, unless the Products are to be collected by
the Customer or the Customer wrongfully fails to take delivery of the Products, in
which event the Seller shall be entitled to invoice the Customer for the price at
any time after the Seller has notified the Customer that the Products are ready
for collection or (as the case may be) the Seller has tendered delivery of the
Products.
5.2 The Customer shall pay the price of the Products (less any discount to which the
Customer is entitled, but without any other deduction) within 30 days of the date
of the Seller’s invoice, and the Seller shall be entitled to recover the price,
notwithstanding that delivery may not have taken place and the property in the
Products has not passed to the Customer. The time of payment of the price shall
be of the essence of the Contract.
5.3 If the Customer fails to make any payment on the due date then, without limiting
any other right or remedy available to the Seller, the Seller may:
5.3.1 cancel the contract or suspend any further deliveries to the Customer;
5.3.2 appropriate any payment made by the Customer to such of the Products
(or the goods supplied under any other contract between the Customer
and the Seller) as the Seller may think fit (notwithstanding any purported
appropriation by the Customer); and
5.3.3 charge the Customer interest (both before and after any judgment) on the
amount unpaid, at the rate of 5 per cent per annum above Barclays Bank
Plc 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 Unless otherwise agreed in writing with the Customer, the Seller shall deliver the
Products to the delivery address stated on the Seller’s Written quotation or the
Customer’s Written order or otherwise agreed in writing between the parties.
6.2 All deliveries to mainland UK are carriage paid except where specific services are
specified and agreed with the Customer.
6.3 Any dates quoted for delivery of the Products are approximate only and the Seller
shall not be liable for any delay in delivery of the Products however caused. Time
for delivery shall not be of the essence of the Contract unless previously agreed
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by the Seller in Writing. The Products may be delivered by the Seller in advance
of the quoted delivery date on giving reasonable notice to the Customer.
6.4 Where the Products are to be delivered in instalments, each delivery shall
constitute a separate contract and failure by the Seller to deliver any one or more
of the instalments in accordance with these Terms or any claim by the Customer
in respect of any one or more instalments shall not entitle the Customer to treat
the Contract as a whole as repudiated.
6.5 If the Seller fails to deliver the Products (or any instalment) for any reason other
than any cause beyond the Seller’s reasonable control or the Customer’s fault,
and the Seller is accordingly liable to the Customer, the Seller’s liability shall be
limited to the excess (if any) of the cost to the Customer (in the cheapest
available market) of similar goods to replace those not delivered over the price of
the Products.
6.6 If the Customer fails to take delivery of the Products or fails to give the Seller
adequate delivery instructions at the time stated for delivery (otherwise than by
reason of any cause beyond the Customer’s reasonable control or by reason of
the Seller’s fault) then, without limiting any other right or remedy available to the
Seller, the Seller may:
6.6.1 store the Products until actual delivery and charge the Customer for the
reasonable costs (including insurance) of storage; or
6.6.2 sell the Products at the best price readily obtainable and (after deducting
all reasonable storage and selling expenses) account to the Customer for
the excess over the price under the Contract or charge the Customer for
any shortfall below the price under the Contract.
7. Risk and property
7.1 Risk of damage to or loss of the Products shall pass to the Customer:
7.1.1 in the case of Products to be delivered at the Seller’s premises, at the time
when the Seller notifies the Customer that the Products are available for
collection; or
7.1.2 in the case of Products to be delivered otherwise than at the Seller’s
premises, at the time of delivery or, if the Customer wrongfully fails to
take delivery of the Products, the time when the Seller has tendered
delivery of the Products.
7.2 Notwithstanding delivery and the passing of risk in the Products, or any other
provision of these Terms, the property in the Products shall not pass to the
Customer until the Seller has received in cash or cleared funds payment in full of
the price of the Products and all other goods agreed to be sold by the Seller to
the Customer for which payment is then due.
7.3 Until such time as the property in the Products passes to the Customer, the
Customer shall hold the Products as the Seller’s fiduciary agent and bailee, and
shall keep the Products separate from those of the Customer and third parties
and properly stored, protected and insured and identified as the Seller’s property,
but the Customer may resell or use the Products in the ordinary course of its
business.
7.4 Until such time as the property in the Products passes to the Customer (and
provided the Products are still in existence and have not been resold), the Seller
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may at any time require the Customer to deliver up the Products to the Seller
and, if the Customer fails to do so forthwith, enter on any premises of the
Customer or any third party where the Products are stored and repossess the
Products.
7.5 The Customer shall not be entitled to pledge or in any way charge by way of
security for any indebtedness any of the Products which remain the property of
the Seller, but if the Customer does so all moneys owing by the Customer to the
Seller shall (without limiting any other right or remedy of the Seller) forthwith
become due and payable.
8. WEEE Compliance
8.1 The Customer shall:
8.1.1 be responsible for financing the collection, treatment, recovery and
environmentally sound disposal of:
8.1.1.1 all WEEE arising or deriving from the Products; and
8.1.1.2 all WEEE arising or deriving from the Products placed on the
market prior to 13 August 2005 where such Products are to be
replaced by the Products and the Products are of an equivalent
type or are fulfilling the same function as that of such Products;
8.1.2 comply with all additional obligations placed upon the Customer by the
WEEE Regulation by virtue of the Customer accepting the responsibility set
out in clause 8.1.1; and
8.1.3 provide the Customer’s WEEE compliance scheme operator with such data,
documents, information and other assistance as such scheme operator
may from time to time reasonably require to enable such operator to
satisfy the obligations assumed by it as a result of the Seller’s membership
of the operator’s compliance scheme.
8.2 The Customer shall be responsible for all costs and expenses arising from and
relating to its obligations in clause 8.1.
8.3 Further information in respect of the arrangements set out in clause 8.1 can be
found at www.electrolink.eu.com by clicking on the “WEEE FINAL USERS” button
and quoting WEEE registration number [WEE/FC0060TU] where prompted.
9. Warranties and liability
9.1 Subject to the following provisions the Seller warrants that the Products 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.
9.2 The above warranty is given by the Seller subject to the following conditions:
9.2.1 the Seller shall be under no liability in respect of any defect in the
Products arising from any drawing, design or specification supplied by the
Customer;
9.2.2 the Seller shall be under no liability in respect of any defect arising from
fair wear and tear, wilful damage, negligence, abnormal working
conditions, failure to follow the Seller’s instructions (whether oral or in
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Writing), misuse or alteration or repair of the Products without the Seller’s
approval;
9.2.3 the Seller shall be under no liability under the above warranty (or any
other warranty, condition or guarantee) if the total price for the Products
has not been paid by the due date for payment;
9.2.4 the above warranty does not extend to parts, materials or equipment not
manufactured by the Seller, in respect of which the Customer shall only be
entitled to the benefit of any such warranty or guarantee as is given by
the manufacturer to the Seller.
9.3 Subject as expressly provided in these Terms, and except where the Products are
sold to a person dealing as a consumer (within the meaning of the Unfair Contract
Terms Act 1977), all warranties, conditions or other terms implied by statute or
common law are excluded to the fullest extent permitted by law.
9.4 Where the Products are sold under a consumer transaction (as defined by the
Consumer Transactions (Restrictions on Statements) Order 1976) the statutory
rights of the Customer are not affected by these Terms.
9.5 A claim by the Customer which is based on any defect in the quality or condition
of the Products or their failure to correspond with specification shall (whether or
not delivery is refused by the Customer) be notified to the Seller in writing within
72 hours from the date of delivery or (where the defect or failure was not
apparent on reasonable inspection) within a reasonable time after discovery of
the defect or failure. If delivery is not refused, and the Customer does not notify
the Seller accordingly, the Customer shall not be entitled to reject the Products
and the Seller shall have no liability for such defect or failure, and the Customer
shall be bound to pay the price as if the Products had been delivered in
accordance with the Contract.
9.6 Some BN Thermic Products incorporate glass components. These Products are
clearly labelled. The Customer must inspect these Products upon receipt and any
breakages must be reported within 24 hours. Claims made after this time or after
the Products have left the original delivery address will not be considered.
9.7 The Customer must, when making a claim under clause 9.5, submit relevant
paperwork and state the original invoice number and a BN Thermic Returns
Number (which can be obtained from the Seller’s Sales Department).The Products
shall be returned by the Customer to the Seller at the Customer’s own costs.
9.8 Where a valid claim under clause 9.5 has been submitted and provided clause 9.7
has been complied with, the Seller at the Seller’s sole discretion, may replace the
Products (or the part in question) free of charge or repair the Products.
9.9 Returns resulting from order cancellation must be agreed in advance. Assuming
an agreement to restock is reached, the Product must be returned in its original
undamaged packaging and in pristine condition. A handling charge will apply.
9.10 Except in respect of death or personal injury caused by the Seller’s negligence, or
liability for defective products under the Consumer Protection Act 1987, the Seller
shall not be liable to the Customer by reason of any 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 loss of profit or for
any indirect, special or consequential loss or damage, costs, expenses or other
claims for compensation whatsoever (whether caused by the negligence of the
Seller, its employees or agents or otherwise) which arise out of or in connection
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with the supply of the Products (including any delay in supplying or any failure to
supply the Products in accordance with the Contract or at all) or their use or
resale by the Customer, and the entire liability of the Seller under or in
connection with the Contract shall not exceed the price of the Products, except as
expressly provided in these Terms.
9.11 The Seller shall not be liable to the Customer 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 Products, if the delay or failure was due
to any cause beyond the Seller’s reasonable control. Without limiting the
foregoing, the following shall be regarded as causes beyond the Seller’s
reasonable control:
9.11.1 Act of God, explosion, flood, tempest, fire or accident;
9.11.2 war or threat of war, sabotage, insurrection, civil disturbance or
requisition;
9.11.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any
kind on the part of any governmental, parliamentary or local authority;
9.11.4 import or export regulations or embargoes;
9.11.5 strikes, lock-outs or other industrial actions or trade disputes (whether
involving employees of the Seller or of a third party);
9.11.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
9.11.7 power failure or breakdown in machinery.
9.12 BN Thermic Ltd acts as an agent for CCI Thermal Technologies Inc. in The UK,
Republic of Ireland and France. When BN Thermic Ltd is acting in this capacity,
the standard BN Thermic warranty will not apply. Products manufactured and or
supplied by CCI Thermal Technologies Inc. will be covered by CCI Thermal
Technologies Inc. standard warranty copies of which can be obtained from the
following address:
CCI Thermal Technologies Inc.
5918 Roper Road
Edmonton, Alberta
Canada T6B 3E1
10. Indemnity
10.1 If a claim is made against the Customer that the Products 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 a drawing, design or specification supplied by the
Customer, the Seller shall indemnify the Customer against all loss, damages,
costs and expenses awarded against or incurred by the Customer in connection
with the claim, or paid or agreed to be paid by the Customer in settlement of the
claim, provided that:
10.1.1 the Seller is given full control of any proceedings or negotiations in
connection with the claim;
10.1.2 the Customer shall give the Seller all reasonable assistance for the
purposes of any such proceedings or negotiations;
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10.1.3 except pursuant to a final award, the Customer shall not pay or accept the
claim, or compromise any such proceedings without the consent of the
Seller (which shall not be unreasonably withheld);
10.1.4 the Customer shall do nothing which would or might vitiate any policy of
insurance or insurance cover which the Customer may have in relation to
such infringement, and this indemnity shall not apply to the extent that
the Customer recovers any sums under any such policy or cover (which
the Customer shall use its best endeavours to do);
10.1.5 the Seller shall be entitled to the benefit of, and the Customer shall
accordingly account to the Seller for, all damages and costs (if any)
awarded in favour of the Customer which are payable by, or agreed with
the consent of the Customer (which consent shall not be unreasonably
withheld) to be paid by, any other party in respect of any such claim; and
10.1.6 without limiting any duty of the Customer at common law, the Seller may
require the Customer 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 Customer under this clause.
10.2 The Customer hereby indemnifies the Seller against all claims, damages, costs
and expenses to which the Seller may become liable through executing any order
in accordance with the Customer’s specification or drawing by the infringement or
the alleged infringement of a patent registered design or similar intellectual
property.
11. Insolvency of the Customer
11.1 This clause 11 applies if:
11.1.1 the Customer makes a composition or voluntary arrangement with its
creditors or (being an individual or firm) becomes bankrupt or (being a
company) enters administration or goes into liquidation (otherwise than
for the purposes of amalgamation or reconstruction), or a moratorium
comes into force in respect of the Customer (within the meaning of the
Insolvency Act 1986); or
11.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of
the property or assets of the Customer; or
11.1.3 the Customer ceases, or threatens to cease, to carry on business; or
11.1.4 the Seller reasonably apprehends that any of the events mentioned above
is about to occur in relation to the Customer and notifies the Customer
accordingly.
11.2 If this clause applies then, without limiting any other right or remedy available to
the Seller, the Seller may cancel the Contract or suspend any further deliveries
under the Contract without any liability to the Customer, and if the Products have
been delivered but not paid for the price shall become immediately due and
payable notwithstanding any previous agreement or arrangement to the contrary.
12. General
12.1 A notice required or permitted to be given by either party to the other under
these Terms shall be in Writing addressed to that other party at its registered
office or principal place of business or such other address as may at the relevant
time have been notified pursuant to this provision to the party giving the notice.
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12.2 No waiver by the Seller of any breach of the Contract by the Customer shall be
considered as a waiver of any subsequent breach of the same or any other
provision.
12.3 If any provision of the Contract is held by a court or other competent authority to
be invalid or unenforceable in whole or in part the validity of the other provisions
of the Contract and the remainder of the provision in question shall not be
affected.
12.4 The Contract shall be governed by the laws of England, and the Customer agrees
to submit to the non-exclusive jurisdiction of the English courts.