Conditions of sale

1. INTERPRETATION
1.1 Definitions. In these Conditions, the following definitions apply:
Buyer: the person or firm who purchases the Goods from the Supplier.
Conditions: the terms and conditions set out in this document as may be amended from time to time.
Contract: the contract between the Supplier and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
Goods: the goods (or any part of them) set out in the Order.
Order: the Buyer’s order for the Goods, as set out in the Buyer’s purchase order form.
Order Confirmation: the Supplier’s written confirmation of the Order.
Supplier: Thermal Economics Limited (registered in England and Wales with company number 1665995).
1.2 Construction. In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes faxes and e-mails.
2. BASIS OF SALE
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Buyer may seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Buyer to purchase the Goods. The Buyer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues an Order Confirmation to the Buyer, at which point the Contract shall come into existence subject to these Conditions.
2.4 The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force.
2.6 If the Buyer wishes to make any changes to the Order following receipt of the Order Confirmation, it may notify such changes to the Supplier but the changes will only be deemed accepted by the Supplier and incorporated into the Contract when the Supplier issues a revised Order Confirmation to the Buyer.
3. GOODS
3.1 The Goods are described in the Supplier’s catalogues and on the Supplier’s website.
3.2 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
4. PRICE
4.1 The price of the Goods shall be the price set out in the Order Confirmation.
4.2 The Supplier may, by giving notice to the Buyer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Buyer to change the delivery date(s), quantities or Goods ordered; or
(c) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Supplier adequate or accurate information or instructions.
4.3 The Order Confirmation will state whether the price of Goods includes the costs of transport. If it does not, the Order Confirmation will state the amount of such transport costs and these shall be invoiced to the Buyer.
4.4 The cost of any returnable pallets and containers used to transport the Goods shall be invoiced to the Buyer. If they are returned to the Supplier undamaged before payment is due, such costs will be deducted from the amount payable by the Buyer.
4.5 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Buyer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
5. PAYMENT
5.1 The Supplier may invoice the Buyer for the Goods on or at any time after the completion of delivery.
5.2 The Buyer shall pay the invoice in full and in cleared funds within 30 days of the date of the invoice. Payment shall be made to the bank account nominated in writing by the Supplier. Time of payment is of the essence.
5.3 If the Buyer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Supplier shall be entitled to cancel or suspend any further deliveries and the Buyer shall pay interest on the overdue amount at the rate of 2% per annum above the Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
5.4 The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Supplier to the Buyer.
6. DELIVERY
6.1 The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location).
6.2 The Supplier shall ensure that:
(a) each delivery of the Goods is accompanied by a delivery note which shows the details of the Goods and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
(b) if the Supplier requires the Buyer to return any pallets and containers used to transport the Goods, that fact is clearly stated on the delivery note.
6.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
6.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods.
6.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event (as defined in clause 11) or the Buyer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
6.6 If the Buyer fails to take delivery of the Goods, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
(a) the Supplier shall store the Goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance); or
(b) the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods or charge the Buyer for any shortfall below the price of the Goods.
6.7 The Buyer shall not be entitled to reject the Goods if the Supplier delivers up to and including 5% more or less than the quantity of Goods ordered but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Buyer that the wrong quantity of Goods was delivered.
6.8 If the Supplier delivers over 5% more or less than the quantity of Goods ordered and the Buyer wishes to reject the Goods, the Buyer must notify the Supplier that it is rejecting the Goods within 48 hours of the Goods being delivered.
6.9 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.
7. QUALITY
7.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Goods shall conform in all material respects with their description and be free from material defects in design, material and workmanship.
7.2 Subject to clause 7.3, if:
(a) the Buyer gives notice in writing to the Supplier during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 7.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Buyer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost,
the Supplier shall, at its option, repair or replace the defective Goods or refund the price of the defective Goods in full.
7.3 The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in clause 7.1 in any of the following events:
(a) the Buyer makes any further use of such Goods after giving notice in accordance with clause 7.2;
(b) the defect arises because the Buyer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the Buyer alters or repairs such Goods without the written consent of the Supplier;
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(e) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
7.4 Except as provided in this clause 7, the Supplier shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 7.1.
7.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
7.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
8. TITLE AND RISK
8.1 The risk in the Goods shall pass to the Buyer on completion of delivery.
8.2 Title to the Goods shall not pass to the Buyer until the Supplier receives payment in full in cleared funds for the Goods.
8.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
(a) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Supplier’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.2; and
(e) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
8.4 If, before title to the Goods passes to the Buyer, the Buyer becomes subject to any of the events listed in clause 9.2, then, without limiting any other right or remedy the Supplier may have, the Supplier may at any time:
(a) require the Buyer to deliver up all Goods in its possession; and
(b) if the Buyer fails to deliver up all Goods promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them.
9. TERMINATION AND SUSPENSION
9.1 If the Buyer becomes subject to any of the events listed in clause 9.2, the Supplier may terminate the Contract with immediate effect by giving written notice to the Buyer.
9.2 For the purposes of clause 9.1, the relevant events are:
(a) the commencement of the winding up (other than for the purpose of a bona fide reconstruction or reorganisation whilst solvent), administration, formal arrangement with creditors or bankruptcy of the Buyer or on the appointment of a receiver of the Buyer’s assets (or any analogous procedure in any jurisdiction); or
(b) a creditor or encumbrancer of the Buyer attaches to or takes possession of, or a receiver is appointed over the Buyer’s assets; or
(c) the Buyer ceases to carry on all or a substantial part of its business.
9.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Supplier if the Buyer becomes subject to any of the events listed in clause 9.2 above, or the Supplier reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
9.4 On termination of the Contract for any reason the Buyer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest.
9.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
9.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10. LIMITATION OF LIABILITY
10.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
(d) defective products under the Consumer Protection Act 1987.
10.2 Subject to clause 10.1:
(a) the Supplier shall under no circumstances whatever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods.
11. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
12. GENERAL
12.1 Assignment and other dealings
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Buyer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
12.2 Notices
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second business day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by by fax or e-mail, one business day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.3 Severance
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.4 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
12.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Supplier.
12.7 Governing law. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
12.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).