The Inverter Drive Supermarket Limited - Standard Conditions of Sale



1. Definitions

In these Conditions, unless the context requires otherwise, the following expressions shall have the following meanings: "The Agreement" the agreements (including any software license), warranties, conditions, representations and other terms set out in these Conditions and in the Order Acknowledgement; "These Conditions" these Standard Conditions of Sale; "Customer" the party, named as Customer in the Order Acknowledgement; "Company" the "Company" being The Inverter Drive Supermarket Limited supplying the Goods and/or Software; "Goods" the goods excluding software which are the subject of the Order Acknowledgement including all instruction leaflets, manuals, drawings, illustrations and specifications provided by the Company to Customer; "Order Acknowledgement" the Company's official written order acknowledgement of the Customers order or the Company's invoice whichever of these documents is issued to the Customer by the Company first;

2. Application and Variation of these Conditions

a) These Conditions together with any special conditions set out in the Order Acknowledgement shall be deemed to be incorporated in all agreements for the sale of any Goods to the Customer and shall apply in place of and prevail over any terms or conditions contained or referred to elsewhere or implied by trade custom, practice or course of dealing. b) Software is licensed to the Customer for use with the Goods only. The Customer shall on request sign the Company's applicable software license in respect of Software, or (as applicable) shall procure that the end user of any Software signs it.

3. Formation of Contract and Cancellation

a) The Company's catalogues, Internet shop, price lists and quotations do not constitute offers made by the Company unless they are expressed to be fixed quotations remaining open for a specified period and the Company reserves the right to withdraw or revise the same at any time prior to the Order Acknowledgement. b) Customer shall not cancel any order without the Company's previous consent in writing. Such consent may be made conditional on payment by the Customer of an appropriate charge. No other obligation or agreement relating to the sale of the Goods, Services or the supply of Software is binding on the Company unless set out in the Agreement or in an amendment or addition thereto duly agreed in writing by the Company.

4. Documentation and Specification

a) All drawings, designs, specifications and particulars of weights and dimensions submitted by the Company remain the property of the Company and are intended merely to describe the Goods and Software generally. They are not to be regarded as a warranty, representation or contractual term unless it is expressly so stated in the Order Acknowledgement. b) The Customer shall ensure timely supply of information and free issue material as appropriate to enable the Company to meet delivery dates. c) The Company has a policy of continuous improvement on its products, and reserves the right to alter the specification of standard items accordingly.

5. Price and Variation of Price

a) The Prices for the Goods shall be as set out in the Order Acknowledgement. All Customs and Excise duties, import or export duties and all other taxes, tariffs and surcharges of any nature whatsoever now or hereafter levied or imposed in any country or territory either directly or indirectly in respect of the sale, supply, delivery or use of the Goods or Software or payments for them or upon freight or other charges shall be borne by Customer and except as stated in the Order Acknowledgement are additional to the prices therein stated. b) If between issue of Order Acknowledgement and date of delivery the price payable by the Company for significant material items included in the goods (for the purposes of example only, motors, transformers), shall have increased, the Company may increase the prices of such Goods and shall in writing so notify the Customer, who shall accept the Goods at the new price unless the Customer notifies the Company within 28 days of the Company's notice that it has withdrawn its order.

6. Invoicing and Payment

a) Subject to the Company's approval of the Customer's current credit rating, full payment for all invoiced items shall be made in the invoice currency so that the Company receives payment within 30 days of invoice date unless otherwise specified in the Order Acknowledgement. b) The Company reserves the right at its discretion at any time to withdraw any credit terms and substitute "Cash with Order" terms. Unless otherwise expressly approved in writing by the Company, payments shall be taken to discharge Customer's oldest debt. If the Customer fails to make payments on the due date, the Company may, in addition to taking any other action provided by these Conditions:- charge interest on all overdue payments at 4% above the base rate from time to time declared by LloydsTSB Plc from the due date until the date of payment as well after as before any judgement; and suspend all further delivery of Goods to be made under the Agreement or further performance of any other contract with the Customer, in which event the Customer shall not be released in any respect from its obligations to the Company under the Agreement or any such other contract.

7. Delivery

a) Unless otherwise expressly provided in the Order Acknowledgement, all sales are Ex-Works (Incoterms 2000). Where any special condition in the Order Acknowledgement provides that the Goods are sold on the basis of any other international trade term listed by the International Chamber of Commerce in Incoterms, 2000, the meaning of such term shall be as set out in Incoterms, 2000 as revised from time to time save where inconsistent with the provisions contained in these Conditions. Section 32(3) of the Sale of Goods Act 1979 shall not apply to the Agreement. b) The Customer shall inspect the Goods on receipt. The Company shall be under no liability in respect of damage to Goods or Software or incomplete delivery unless Customer's written claim is received by the Company within 7 days of receipt of the Goods (or in the case of missing or undelivered Goods, within 14 days of due date of receipt), followed within 21 days of the Company's request for such evidence of defect or shortage as the Company may reasonably request. c) Any period or date for delivery stated in the Agreement is intended as an estimate only and is not a contractual commitment. d) The Company may deliver the Goods in one or more instalments. Where delivery is affected by instalment each instalment shall be treated as a separate contract. Failure by the Company to make any delivery or part delivery in accordance with the Agreement or any claim by the Customer in respect of such delivery or part delivery shall not entitle Customer to reject the balance of the Goods agreed to be purchased by Customer. At the Customer's request, the Company may consent to postponement of delivery beyond the delivery date, subject to the Customer assuming the risk in the Goods and Software and paying storage charges. e) At the request of the Customer, the Company shall as agents for the Customer arrange for carriage and transport insurance to the destination specified in the Customer's order on such terms as to carriage and insurance as the Company considers appropriate, unless the Customer specifies otherwise and the Company shall invoice Customer all carriage and insurance costs incurred. Section 32(2) of the Sale of Goods Act 1979 shall not apply to the Agreement. Customer shall meet the cost of any special packaging requested by the Customer or any packaging rendered necessary by delivery by any means other than the Company's normal means of delivery.

8. Warranty

a) The Company warrants:- the Goods and the medium on or into which the Software is incorporated against defects in design, materials and workmanship for the period provided by the Manufacturer. This is typically 12 months from the date of delivery to the Company, unless a written agreement exists between all parties. Copies of Suppliers warranty clauses will be made available on request. The liability of the Company shall be entirely discharged by the assignment to Customer so far as is legally possible of such warranty rights as have been granted by the manufacturers of such Goods. Where such an assignment cannot be affected, the Company's' liability shall be limited to an amount (if any) equal to the net amount (after deduction of costs) recovered by the Company in respect of the Goods from the manufacturer. b) The Company and its Suppliers accept no liability for i) Defects caused by Customer's design or installation of the Goods or Software; ii) Or if the Goods or Software have been modified or repaired otherwise than as authorised in writing by the Company; iii) Or if the Goods have not been operated, stored, or maintained as recommended by the Company; iv) Or if the defect arises because of the fitting of the goods to unsuitable equipment; v) or where Customer has failed to observe the terms of payment for the Goods or any other obligation imposed by the Agreement.

9. Recycling

WEEE 2002/96EC: The Company's Inverter products are classed as components and are therefore exempt from this directive. The Company is not required to recycle Inverter products.

10. Limitation and Exclusion

a) Subject to Condition 8, the Company shall be under no liability to Customer for any damages or losses, direct or indirect, resulting from defects in design, materials or workmanship. b) The Company shall have no liability for any indirect or consequential losses or expenses suffered by Customer, however caused. c) Except as specifically set out in the agreement, any term, representation, condition or warranty in respect of the Fitness For Purpose, satisfactory quality, condition, description of the goods, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded. d) Nothing in these Conditions shall be interpreted as excluding or restricting any legal liability of the Company for death or personal injury resulting from the negligence of the Company, its employees, agents or sub-contractors or restricting any of the Company's legal obligations arising under Section 12 of the Sale of Goods Act 1979 as amended by the Sale and Supply of Goods Act 1994 or under the Consumer Protection Act 1987.

11. Insurance

a) The Company maintains insurance cover at a level it believes appropriate to its business. Customer may inspect the terms of the Company's cover on reasonable notice. b) The Customer agrees that it is best able to assess and provide for its own insurance needs. The Customer acknowledges that it is reasonable for the Company to sell the Goods and license the Software and fix their price on the basis of the exclusion and limitations of liability set out in these Conditions, and the Customer agrees that it will be responsible for effecting sufficient insurance cover for its business to cover any loss or damage that might arise from the Company's negligence or breach.

12. Health and Safety at Work

a) Customer undertakes that it will comply and will procure that its employees, customers, and every other person working with, on or near or using the Goods comply in full with the instructions and recommendations made in any manual or handbook provided by the Company or other manufacturer of the Goods and that they will comply with all other instructions given in connection with the use or operation of the Goods. b) The Goods are designed by others to operate without danger to health and safety where correctly installed by competent personnel and used in accordance with the relevant standards, the designed rating, and accepted good industrial practice. The Customer shall first obtain the Company's written approval before operation or use of the Goods under unusual conditions.

13. Intellectual Property

a) The Company warrants that to the best of its knowledge and belief the Goods and Software do not infringe any letters patent, designs or copyright in the UK. In the event that it is alleged that the use or possession of the Goods or Software by the Customer infringes any third party intellectual property rights in the UK then:- i. The Customer shall promptly notify the Company in writing of any alleged infringement of which it has notice; ii. The Customer shall not make any admission without the Company's consent; iii. and the Company shall have sole control of any related negotiations or litigation, and any costs incurred or recovered shall be for the Company's account. b) If at anytime any allegation of infringement of letters patent, design or copyright is made in respect of the Goods or Software or in the Company's reasonable opinion is likely to be made, the Company may at its option and at its own expense either:- i) modify or replace the Goods or Software without detracting from overall performance thereof, so as to avoid the infringement; or procure for the Customer the right to continue to use the Goods and Software; ii) or repurchase the Goods and Software at the price paid by the Customer less depreciation at such rate as is applied by the Company to its own equipment. c) The Customer shall indemnify the Company against any and all liabilities, claims and costs incurred by or made against it as a direct or indirect result of the carrying out of any work required to be done on or to the Goods in accordance with the requirements or specifications of the Customer involving any infringement or alleged infringement of any rights of any third party.

14. Passing of Property

a) The Goods shall remain the property of the Company as legal and equitable owner and no property in or title to the Goods shall pass to the Customer until their full price has been duly paid to the Company. Pending legal and beneficial ownership of the Goods unencumbered, passing to the Customer, the Customer:- shall keep the Goods in good condition; fully insured in their full replacement value against all risks prudently insured against; and shall not encumber in any way. b) Failure to pay the price for the Goods and that of such other goods referred to above when due shall, without prejudice to any other remedies the Company may have, entitle the Company to repossess the Goods or so much thereof as the Company may determine from any premises where they may be. For the purpose of repossessing the Goods or any part thereof the Customer hereby grants an irrevocable license to the Company, its employees or agents, to enter upon such premises and Customer shall pay to the Company the cost of removal and transport of the Goods or any part thereof. c) The Customer may in its ordinary course of its business sell and deliver the Goods in which the property remains with the Company to any third party as the Company's agent, in a fiduciary capacity and for the account of the Company. Customer shall upon request assign to the Company the legal title of any right against any third party arising out of such sale. The Customer shall be entitled to receive from the Company by way of commission the excess of the proceeds of sale over the amounts due to the Company from Customer. d) Notwithstanding the provisions of this Condition, the Company shall be entitled to bring an action against the Customer for the price of the Goods in the event of non-payment by Customer by the due date as if the property in the Goods had already passed to the Customer and/or shall have the right by notice in writing to the Customer at any time after the agreed delivery date to pass the property in the Goods to the Customer as from the date of such notice.

15. Insolvency and Default

a) The Company may by notice in writing to the Customer terminate this Agreement or in its absolute discretion any other contracts with the Customer so far as unperformed by the Company forthwith if:- i) The Customer shall commit any breach of any of the terms (including, without limitation, terms concerning the time for payment of the purchase price) of this Agreement or any other contract with the Company; ii) The Customer compounds with or negotiates for any composition with its creditors generally; iii) or being an individual, the Customer shall die or have a receiving order made against him; iv) or being a body corporate or legal persona, the Customer shall call any meeting of its creditors or have a receiver or administrator of all or any of its assets appointed or enter into any liquidation (other than solely for reconstruction or amalgamation while solvent) or commit any other act of insolvency. b) In the event of such termination:- i) The Customer shall forthwith on demand deliver to the Company any Goods which are in the possession or control of the Customer but in which the property remains with the Company; and, in default thereof, the Company shall be entitled to repossess the same and for such purpose to enter into and upon the premises of the Customer without being liable for any damage caused thereby and the Customer shall indemnify the Company from and against any liability to any third party in respect of any such damage and from and against all actions, proceedings, claims, demands, costs, damages and expenses howsoever arising; ii) and the Company shall be entitled by notice in writing to the Customer to declare immediately due and payable any amounts outstanding from the Customer to the Company under this or any other contract (such sums thereby becoming forthwith due and payable); iii) and the Company may claim damages from the Customer for breach of the Agreement. The provisions of this Condition and the exercise by the Company of its rights there under are without prejudice to any other rights of the Company.

16. Force Majeure

a) Neither party shall be liable for breach of the Agreement other than payment if and to the extent that fulfilment of a term or condition hereof has been prevented, hindered or delayed by force majeure as defined in this Condition and in such event the time for fulfilment of such a term shall be extended for such period as is reasonable in all the circumstances. b) The expression "force majeure" shall mean any event of circumstances beyond the immediate control of either party, including without prejudice to the generality of the foregoing, strikes, lock-outs, trade disputes, accident to plant or machinery, shortage of any material, failure in whole or in part of any power or energy supply, delays in or cancellations of deliveries or provision of services by third parties, riots, civil commotion, war national or international, emergency, destruction or damage due to natural forces, fire, flood, explosion, and compliance with orders or requests of any national or local authority.

17. Export

In the case of Goods for delivery outside UK, the following conditions shall have effect and, in case of inconsistency with other Conditions herein, shall prevail:- a) Payment shall be made in cash or by credit transfer at the date of the Order Acknowledgement. b) The risk of loss or damage to Goods shall pass to the Customer immediately on appropriation to the Customer's order. c) The Customer shall satisfy himself and be entirely responsible for ensuring compliance with all customs/ import/export and/or trans-shipment regulations. The Company will assist the Customer by supplying all non-confidential or non-secret information reasonably required by the Customer, but giving of such information shall not constitute a representation nor be regarded as having contractual effect. d) The application of the Uniform Laws on International Sales shall be excluded.

18. Goods Controlled by Export Licences

The Goods including technical data may be subject to UK export control laws and may be subject to export or import regulations in other countries. The Customer agrees to comply strictly with all such regulations and acknowledges that it has the responsibility to obtain licences to export, re-export or import Goods after delivery to the Customer.

19. Assignment

The Customer shall not assign or otherwise transfer all or any of its rights, interests or obligations under the Agreement without the prior written consent of the Company. Any or all of the Company's rights or obligations under this Agreement or other contract may be assigned by the Company and the Customer shall not assert against an assignee any defence (other than actual payment), set-off or counterclaim which the Customer may have against the Company.

20. Set-off

The Customer undertakes to make any payment due hereunder in full without any deduction, offset or counterclaim whatsoever.

21. Notices

Any notice hereunder shall be deemed to have been given if delivered by hand or sent by prepaid first class post or facsimile (confirmed by telephone and followed by notice by post) to the party concerned at its last known address, and deemed to have been received on the date of despatch, if delivered by hand or sent by facsimile, and when received, if sent by post.

22. Interpretation and Law

a) Headings are included in these Conditions for convenience and identification only, and are not to be taken to limit the meaning of any part of these Conditions. b) If any provision or part of a provision of the Agreement should be held unenforceable or in conflict with the law of any relevant jurisdiction, any part so held unenforceable or invalid shall be severed from the remainder of the Agreement which shall not be affected by such severance. c) The Agreement represents the complete agreement between the Company and the Customer with regard to the Goods and contains all agreements, warranties, conditions, representations and other terms agreed, made or relied upon by either party in connection with the Goods. The rights of the Company shall not be prejudiced or restricted by any indulgence or forbearance extended to Customer and no waiver of any breach shall operate as a waiver of any subsequent breach. d) These Conditions and every contract connected therewith shall be governed exclusively by English law, and any claim or dispute arising there from shall be submitted to the English courts, or in such other court which in the Company's view constitutes a forum convenient and of which the Company may notify the Customer at any time. e) Any reference in these Conditions to any statute or statutory provision shall be construed as including a reference to that statute or statutory provision as from time to time amended, modified, extended or re-enacted whether before or after the date of this agreement and to all statutory instruments, orders and regulations for the time being made pursuant to it or deriving validity from it.

Issue 01 - 16 September 2006