All orders will be accepted and goods or services supplied only subject to these terms and conditions of sale (and each order and the Company’s acceptance of the order shall hereinafter be termed ‘the Contract’) and any person, firm or company (hereinafter termed ‘the Buyer’) supplied by Manbat Ltd (T/A ECOBAT Battery Technologies)(Company No. 2906519) (hereinafter termed ‘the Company’) accept that these terms and conditions govern all contractual dealings between them to the exclusion of any terms contained in any of the Buyer’s documents even if the Buyer’s terms purport to provide that the Buyer’s own or some other terms prevail.
No order shall be accepted until the Company either expressly by giving notice of acceptance, or impliedly by fulfilling the order, accepts the offer.
No employee or other person acting or purporting to act on behalf of the Company is authorised to agree or effect any alteration in these terms or make or give any representation or warranty to the goods or services save only that a Director of the Company may, in writing agree such alterations or make or give such representation or warranties.
PAYMENT OF ACCOUNTS
All credit accounts are agreed on the basis of being nett monthly credit accounts. All accounts must be paid not later than the last day of the month following the date of invoice. In the event of default of payment, the Company reserves the right to suspend or cancel credit facilities and to charge an additional account service charge at a rate of 2% per month at monthly intervals on the overdue portion of the account until the arrears are paid in full.
IT IS THE BUYER’S RESPONSIBILITY TO ENSURE THAT PAYMENT IS MADE TO THE COMPANY BY THE DUE DATE.
RETURN OF GOODS
Goods which have been supplied in accordance with the Buyer’s order may only be returned at the discretion of a Manager or Director of the Company. After a period of four weeks from delivery, any goods authorised to be accepted for credit will be subject to a handling charge of ten per cent to cover the cost of refurbishing or repackaging. Goods ordered or made specially cannot be accepted for credit.
CLAIMS FOR DAMAGE OR SHORTAGES
Claims for damage or shortage of goods found by the Buyer must be notified to both the Company and the carrier within 48 hours of receipt of goods. Claims for non delivery of goods must be notified by the Buyer to the Company within seven days of invoice date. Failure to do so will free the Company from any liability in this respect. Where any valid claim in respect of damage or shortage of goods is notified to the Company in accordance with these Conditions the Company shall make up any shortage or replace the goods (or the part in question) free of charge (as the case may be) but the Company shall have no further liability to the Buyer.
Delivery shall be made by the Company delivering the goods to the premises of the Buyer or, if agreed by the Company, by the Buyer collecting the goods at the Company’s premises at any time after the Company has notified the Buyer that the goods are ready for collection. Goods will normally be delivered carriage paid. However the Company reserves the right to charge any deliveries of small value or special deliveries, such charges being at the discretion of the Company.
Any dates quoted for delivery of goods are approximate only and the Company shall not be liable for any delay in delivery of the goods, howsoever caused. Time of delivery shall not be of the essence. Goods may be delivered by the Company in advance of the quoted delivery due date upon giving reasonable notice to the Buyer.
FITNESS FOR PURPOSE
The Company takes every care with regard to the quality and standard of manufacture of the goods it supplies as far as it is able to. Every effort has been made to ensure that the goods described in catalogues are accurate. However, as the goods are used for a multiplicity of purposes, and the Company has no control over the method of their application or use, the Company excludes so far as it may legally do so any condition or warranty implied by statute or otherwise as to the fitness of its goods for any particular purpose. Any technical co-operation between the Company, its suppliers or the Buyer shall not affect this situation.
WARRANTIES AND LIABILITIES
Subject to the conditions set out below, the Company warrants that the goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for the stated period of warranty.
The above warranties are given by the Company subject to the following conditions:-
1. The Company 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 Company’s instructions (whether oral or in writing), misuse or alteration or repair of the goods without the Company’s approval.
2. The Company shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the goods has not been paid by the due date for payment.
Subject as expressly provided in these Conditions, and except where the goods 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.
Where the goods are sold under a consumer transaction (as defined by the Consumer Transaction (Restrictions on Statements) Order 1976), the statutory rights of the Buyer are not affected by these conditions.
Where any valid claim in respect of any of the goods which is based on any defect in the quality or condition of the goods or their failure to meet specification is notified to the Company in accordance with these Conditions, the Company shall be entitled to replace the goods (or the part in question) free of charge or at the Company’s sole discretion, refund the Buyer the price of the goods (or a proportionate part of the price) but the Company shall have no further liability to the Buyer. Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Buyer by reason of any representation or any implied warranty, condition or other term, or any duty at common law, or under the expressed terms of the Contract, for any consequential loss or damage (whether for a loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the goods or their use or resale by the Buyer , except as expressly provided in these Conditions.
The Company shall not be liable to the Buyer 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 Company’s obligations in relation to the Company’s reasonable control.
RESERVATION OF TITLE
Risk of damage or loss of the goods shall pass to the Buyer at the time of delivery or, if the Buyer fails to take delivery of the goods, the time when the Company has tendered delivery of the goods or when the Company has notified the Buyer that the goods are ready for collection. Notwithstanding delivery and
the passing of risk, property in the goods shall not pass to the Buyer until the Company has received in cash or cleared funds, payment in full of the price of the goods and all other goods agreed to be sold by the Company to the Buyer for which payment is then due.
Until such time as the property in the goods passes to the Buyer, the Buyer shall hold the goods as the Company’s fiduciary agent and bailee and shall keep the goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Company’s property. Until that time the Buyer shall be entitled to resell or use the goods in the ordinary course of its business but shall account to the Company for the proceeds of sale or otherwise of the goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties, and in the case of tangible proceeds, properly stored, protected and insured.
Until such time as the property in the goods passes to the Buyer (and provided the goods are still in existence and have not been re sold) the Company shall be entitled at any time to require the Buyer to deliver up the goods to the Company, and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the goods are stored and repossess the goods.
The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness of any of the goods which remain the property of the Company, but if the Buyer does so, the Buyer’s right to possession of the goods shall terminate immediately and all monies owing by the Buyer to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
Where the Company is unable to determine whether any goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
INSOLVENCY OF THE BUYER
This clause applies if:
1. The Buyer makes a voluntary agreement with its creditors or becomes subject to an Administration Order or (being an individual or firm) becomes bankrupt or (being a Company) goes into liquidation (otherwise than for purposes of amalgamation or reconstruction). OR
2. An encumbrancer takes possession, or a Receiver is appointed, of any of the property or assets of the Buyer OR
3. The Buyer ceases, or threatens to cease , to carry on business; OR
4. The Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
If this clause applies, then the Buyer’s right to possession of the goods shall terminate immediately and without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the contract or suspend any further deliveries under the contract, without any liability for the Buyer, and if the goods have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement to the contrary.
Orders are accepted by the Company on the basis that prices charged shall be exclusive of VAT and as per the Company’s price list at the date of despatch. Prices may be increased by the Company to the extent necessary to enable the Company to recover any increases in costs incurred by the Company prior to the date of despatch.
Quotations do not constitute a firm offer and shall not bind the Company until an order has been placed and accepted.
The Company does not recognise any terms and conditions of contract supplied by the Buyer unless any such terms and conditions are specifically acknowledged and agreed in writing by a Director of the Company. Acceptance of, or compliance with, or implementation of orders does not imply acceptance of the Buyer’s terms and conditions by the Company.
UNFAIR CONTRACT TERMS
The Company has drawn up these Terms and Conditions of Sale and considers them to be fair and reasonable and its prices are based on contracts made on these conditions. If the Buyer considers these Terms and Conditions to be unreasonable, the Company must be informed in writing before any Contract is made, otherwise the Buyer will be deemed to have accepted the Company’s Terms and Conditions are fair and reasonable.
The Company may assign the Contract or any part of it to any person, firm or company. The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
If any provision of the Contract is found by any court, tribunal or administration body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
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.
The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
ECOBAT Batteries Technology Standard Terms & Conditions of Sale – Latest revision – 12th March 2007 – ISO QAP 01 Doc 3I – Issue 2 12/3/07