XCAM Limited Standard Terms and Conditions of Business
1. Interpretation
1.1 In this agreement:
“THE COMPANY” means XCAM Limited
of Grove Farm, Moulton, Northampton, NN3 7TG, UK or its authorised Agents
appointed in writing by the Company
“THE CUSTOMER” means the person,
firm, or company with whom the Company contracts
“CONDITIONS”
means the standard terms and conditions set out in this document and (unless
the context otherwise requires) includes any special terms and Conditions
agreed in writing between the Customer and the Company
“CONTRACT” means the Contract for
the purchase and sale of the Products
“ORDER” means the
order placed by the Customer for the supply of Products and/or the Work and
“Orders” shall be construed accordingly
“WORK” means the installation,
test, maintenance, repair or refurbishment work carried out by the Company
where such has been agreed between the Company and the Customer in writing
“PRODUCTS” means any item which
the Company agrees to supply to the Customer upon these terms and conditions
1.2 The headings in this Agreement are inserted only for
convenience and shall not affect its construction
1.3 Where appropriate words denoting a singular number only shall
include the plural and vice versa
1.4 Reference to any statute or statutory provision includes a
reference to the statute or statutory provision as from time to time amended,
extended or re-enacted
1.5 In case of any discrepancy between the standard terms and
Conditions and the specific terms negotiated for any particular contract, the
specific terms shall prevail
1.6 No variation to these Conditions shall be effective unless
made in writing and signed by a director of the Company
1.7 Unless otherwise agreed in writing by the Company, these terms
and conditions expressly exclude any terms or conditions stipulated or referred
to by the Customer in negotiations or orders, and the acceptance of an order by
the Company shall constitute the acceptance of these terms and conditions by
the Customer
1.8 These Conditions supersede any prior representations whether
made by or on behalf of the Company and whether orally or in writing
2. Orders and Specifications
2.1 No Order submitted by the Customer shall be deemed to be
accepted by the Company unless and until confirmed in writing by the
Company. Orders are only accepted by the
Company subject to the credit worthiness of the Customer being satisfactory.
Any alteration to such instructions or to the Order must be confirmed by the
Company in writing
2.3 The Company reserves the right to make an additional charge to
cover the cost of making any variation or modification to a specification
2.4 The Specification for the Products should be those set out in
the Company's quotation
2.5 If the Products are to be manufactured or any processes are to
be applied to the Products by the Company in accordance with a specification
submitted by the Customer, the Customer shall indemnify the Company against all
loss, damages, costs, and expenses awarded against or incurred by the Company
in connection with or paid or agreed to be paid by the Company 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 Company's use of the Customers specification
2.6 The Company reserves the right to make any changes in the
specification of the Products which are required to conform with
any applicable statutory requirements
3. Price Increase
3.1 All estimates and quotations remain valid for thirty (30) days
unless otherwise stated and thereafter at the option of the Company may be
withdrawn or varied without notice
3.2 All prices are:-
3.2.1 Inclusive of all or any packing required.
3.2.2 Exclusive of delivery charges – Any and all
delivery charges incurred by The Company will be passed on and charged to the
Customer in addition to the order value.
3.2.3 All or any quotations or estimates
submitted by The Company are based on costs “ex works” only.
3.3 The
Company reserves the right, by giving 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 Company which is due to any factor beyond the control of the
Company (such as, without limitation, foreign exchange fluctuation, currency
regulation, alteration of duties, increase in the cost of labour or materials
by more than 5%)
4. Acceptance and Terms of Payment
4.1 The buyer must inspect the Products immediately upon receipt
and, subject to Clause 4.2, acceptance of the Products will be deemed to have
occurred upon receipt of goods by the Customer
4.2 If the products or any part thereof are damaged or otherwise
do not meet the specification of the Products the Customer must notify the
Company forthwith and in no case longer than five (5) days after delivery of
the Products
4.3 Subject to any special terms agreed between the Company and
the Customer, the Company shall be entitled to invoice the Customer for the
price of the Products on or at any time after delivery of the Products or in
the event that the Customer is to collect the Products at any time after the
Company has notified the Customer the Products are ready for collection
4.4 Unless otherwise agreed in writing by the Company, payments
will be due net 30 days from the date of invoice on terms satisfactory to the
Company and in default of such payment or if the Customer fails to pay any
other outstanding amounts due to the Company the Company may withhold further
deliveries and, where applicable, cease any work in respect of the contract or
series of contracts to which the default relates and in respect of any other
contract with the Customer. Furthermore in any case the Company shall hold the
Customer liable for costs incurred in respect of goods in the course of manufacture
already for despatch. The Company shall be entitled to bring an action for the
price of part thereof whether or not the property to the goods has passed
4.5 If the Customer fails to make any payment on the due date then
without prejudice to any of the right or remedy available to the Company the
Company shall be entitled to:-
4.5.1 Cancel the Contract
4.5.2 Charge the Customer interest (both before and after any
judgement) on the amount unpaid, at the rate of 4% per annum above Lloyds Bank
Plc Base rate from time to time until payment in full is made
4.6 An Order accepted by the Company may be cancelled or varied
only with the written agreement of the Company and where such written agreement
is obtained the Customer shall pay the amount of the cancellation charge (if
any) which the Company may specify and shall reimburse and indemnify the
Company in respect of all costs and charges which the Company may incur in part
performance of the Order or where applicable the Work. Products must not be returned to the Company
without the previous written consent of the Company, and where such consent has
been obtained the cost of returning the Products must be borne by the Customer.
Where the Company agrees to accept back Products it will specify the handling
charge (if any) that will be made for so doing. No refund shall be given for
Products returned to the Company without the express consent of the Company
5. Delivery
5.1 The Company shall be entitled to make part deliveries unless
otherwise agreed in writing. Where the
Products are to be delivered in instalments, each delivery shall constitute a
separate Contract and failure by the Company to deliver any one or more of the
instalments in accordance with these Conditions 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
5.2 Delivery to a carrier (whether independent or otherwise) shall
be deemed to be delivery to the Customer and the risk of loss and damage to the
Products shall pass to the Customer upon such delivery
5.3 All times quoted for delivery are estimated times only and
time shall not be of the essence and the Company shall be under no liability
and the Customer shall not have the right to terminate the Contract by reason
of any delay in delivery
6. Risk and Title
6.1 Risk of loss of, damage to, or deterioration of the Products shall pass to the
Customer on arrival of the Products at the Customer’s relevant place of
business where delivery is by the Company's own transport, and in all other
circumstances at the time of dispatch of the Products from the company's
premises
6.2 The
Company reserves title to the Products until such time as all sums due to the
Company from the Customer whether in respect of the Products or otherwise are
paid in full when they will pass to the Customer
6.3 Until payment is received in full, the Customer shall maintain
the Products in good condition and shall hold the Products as bailee of the Company and will store the Products
so that they are readily identifiable as the property of the Company and will
not permit the Products to become incorporated into any other equipment or
system
7. Attendance on Site
7.1 The Provisions of this Clause shall apply only where the agreement
between the Company and the Customer provides for the testing of the products
on the Customer’s site and any other activities carried out by the company in
the carrying out of the work. The
Company shall supply specifications for the carrying out of the Work and a
representative of the Company may attend the Customer's site during
installation of the Products by the Customer, or by any agent or sub‑contractor
of the Customer, and may give such advice (if any) as it thinks appropriate
7.2 Such attendance will be made any week day (except days which
are statutory holidays in the country where the installation is made) and
during the normal business hours of that country
7.3 If, by reason of the suspension of the carrying out of the
Work, or of any other delay thereto, caused by the Customer or its agent or sub‑contractor
(otherwise than in consequence of some default on the part of the Company), the
Company shall incur additional expense, the Customer shall reimburse any such
expense to the Company in addition to the payment of the price
7.4 If the carrying out of the Work or any portion thereof is
suspended as aforesaid for more than three months, the Company shall be
entitled, without prejudice to any other remedy, to cancel the contract and to
be paid for the supervision of the Work completed and materials purchased
pursuant to the contract prior to the date of cancellation
7.5 The Customer shall indemnify the Company for any losses
liabilities or damages arising out of the Customer’s failure to provide a safe
system of work for the Company’s employees and any injury or damage to any
employee of the Company resulting from the negligence of the Customer or its employees invitees or agents
8. Import and Export Licences
The Contract shall be subject to
the following:‑
8.1 To the procurement by the Customer at his own expense of any
import Licence necessarily required for the import of the Products into the
country to which the Products are to be exported. The Import Licence number and date of expiry
shall be advised at the time the order for the Products is placed with the
Company: otherwise the order will remain in abeyance. In the event of the Import Licence expiring
before the Products have been made available it shall be the responsibility of
the Customer to obtain the renewal of such Licence. The Company shall not be liable for any
expense or loss caused by delay in obtaining such Licence or the renewal
thereof.
8.2 Where the Order is placed from an address in the United
Kingdom, to the procurement by the Customer at his own expenses of any Export
Licence which may be required for the export of Products from the United
Kingdom.
8.3 Where the Order is placed from an address outside the United
Kingdom the Company will endeavour (without commitment) to obtain any Export
Licence which may be necessary.
9. Patents
If the Customer receives a claim
that any item forming part of the Products manufactured by the Company
infringes any copyright patent or other intellectual property rights of a third
party, the Customer shall notify the Company in writing immediately. The Company will have the sole right to
evaluate, settle or defend such claim and the Customer must give the Company
all possible information and assistance for this purpose. The Company may at its own expense and option
do all or any of the following:
(a) settle the claim
(b) obtain for the Customer the right to
use such Product
(c) replace or modify the Product to
avoid infringement
(d) have the Customer return the
Product, refunding to the Customer the purchase price; or
(e) defend against such claim
If any court of competent
jurisdiction holds such Product to constitute infringement the Company shall
pay all costs and damages fully awarded on account of such infringement and if
the use of such Product is prohibited the Company shall at its own option take
action as specified in (b) and (c) above.
If a claim to infringement relates to a Product or part sold but not
manufactured by the Company, the indemnity given by the manufacturers of each Product
or part shall apply. The rights and
obligations of the Company and the Customer respecting patents are solely and
exclusively as laid down in this condition.
10. Liquidation or Bankruptcy
10.1 In the event of the
Customer becoming insolvent or going into liquidation (other than for the
purposes of amalgamation or reconstruction) or making any arrangement or
composition with its creditors or in the event of any proceedings in which the
Customer's solvency is involved including without limitation to the foregoing
the appointment of a receiver over all or any part of the Customer's
undertaking or assets, payment in respect of all Products delivered by the
Company to the Customer, and in respect of all work (including the Work carried
out on behalf of the Customer) and in respect of any other sums owed by the
Customer to the Company whether under the contract concerned or any other
contract shall forthwith become due and payable and the Company shall be
entitled to cancel the contract by notice in writing to the Customer. The Customer shall inform the Company
immediately upon the happening of any one or more of the events stated in this
condition and shall supply to the Company sufficient details thereof to enable
the Company to exercise its rights hereunder.
11. Warranty
11.1 The Company provides a warranty against defective manufacture of
parts for a period of 1 year from the date of delivery of the Products
11.2 Charge coupled device sensors supplied as part of the Products
will pass through the manufacturer's own warranty
11.3 Except where the Company may from time to time give any express guarantee in writing
in connection with any particular product, it is expressly understood that no
warranty is given, either express or implied, as to the suitability of its
products for any specific purpose, even if that purpose is known to the Company
11.4 If
without prior consent of the Company repairs, modifications or alterations are
made to the Products the Company shall be under no liability in respect of the
Products and the Customer shall indemnify the Company against all and any
claims for loss damages or injury resulting from the use of such Products
repaired, modified or altered by the Customer
12. Liability
12.1 The Company's entire liability or any claim for loss, cost,
damage, expenses or other liability arising out of or connected with this
contract, or any obligation resulting therefrom shall in no case exceed the
unit price of the Product, or proportionate part thereof involved in such claim
12.2 Any
act or omission on the part of the Company, its employees or subcontractors
which results in a breach of its contractual obligations for the purpose of
this Clause 8 will be known as an “Event of Default”
12.3 The Company shall not be liable to the Customer in respect of an
Event of Default for loss of profits goodwill or any type of special indirect
or consequential loss (including loss or damage suffered by the Customer as a
result of any action brought by a third party) even if such loss was reasonably
foreseeable or the Company had been advised of the possibility of the Customer
incurring the same
12.4 The Customer hereby agrees to afford the Company not less than
60 days (following notification thereof by the Customer) in which to remedy an
Event of Default hereunder
13. Confidentiality
13.1 All confidential information including trade secrets provided to
the Customer at any time whether in writing orally or in samples, drawings,
documents or other materials is the property of the Company and shall not be
disclosed by the Customer to any third party, or used for any purpose without
the express written consent of the company, unless and until any such
information falls into the public domain (other than as a result of a breach
thereof).
13.2 No technical information of a confidential or proprietary nature
relating to an order will be accepted by the Company other than pursuant to a
formal written agreement
14. Force Majeure
14.1 Neither party shall be in breach of the Agreement if there is
any total or partial failure of performance by it of its duties and obligations
under this Agreement occasioned by any act of God, fire, act of government or
state, war, civil commotion, insurrection, embargo, prevention from or
hindrance in obtaining any raw materials energy or other supplies labour
disputes of whatever nature and any other reason beyond the control of either
party. If either party is unable to
perform its duties and obligations under this Agreement as a direct result of
one of those reasons, that party shall give written
notice to the other of the inability which sets out full details of the reason
in question. The operation of this
Agreement shall be suspended during the period (and only during the period) in
which the reason continues. Forthwith upon
the reason ceasing to exist, the party relying on it shall give written notice
to the other of this fact. If the reason
continues for a period of more than 90 days and substantially affect the
commercial intention of this Agreement, the party not claiming relief under
this Clause 10 shall have the right to terminate this Agreement upon giving 30
days' written notice of such termination to the other party
15. Other Items
15.1 Any statements, representations or purported conditions and
warranties made to the Customer before acceptance of an Order by the Company
other than those in writing are hereby excluded or extinguished and do not form
part of and are not collateral to the contract
15.2 Save as provided in these conditions the Company shall be under
no liability (other than in respect of death or personal injury resulting
from the negligence of the Company) in
contract tort or otherwise howsoever caused for anything done or omitted in
connection with the Products, the Work, services supplied or any work in
connection therewith
15.3 The Company shall not be liable for any advice or expression of
opinion given by it or its employees or agents in relation to the Products or
their fitness for any particular purpose except to the extent that the same is
contained in the terms of the contract or in the Company's literature current
on the date of acceptance of the Order.
16. Governing Law and Jurisdiction
16.1 The validity construction and performance of the Agreement shall
be governed by English Law
16.2 All disputes claims or proceedings between the parties relating
to the validity construction or performance of the Agreement shall be subject
to the non-exclusive jurisdiction of the High Court of Justice in England to
which the parties hereto irrevocably submit.
Each of the parties irrevocably consents to the award or grant of any
relief in any such proceedings before the High Court of Justice in
England. Either party shall have the
right to take proceedings in any other jurisdiction for the purposes of enforcing
a judgement or order obtained from the High Court of Justice in England
16.3 If any dispute or difference
shall at any time hereafter arise as to commission or royalty the matter shall
be referred to an arbitrator to be appointed by the parties or in default of
agreement by the President of the Law Society for the time being and his or
their decision shall be binding on both parties and this shall be a submission
to arbitration within the Arbitration Acts 1950-1979
17. Validity and Enforceability
17.1 Invalidity
or unenforceability of any clause or sub clause hereof shall not affect the
validity or enforceability of any other clause or sub clause and invalidity or
unenforceability of any part of a clause shall not affect the validity of
enforceability of the remaining parts of that clause.
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