ELUXI LTD TERMS AND CONDITIONS OF SALE
The Customer's attention is drawn in particular to the provisions of clause 11
1.1 In these Conditions, the following definitions and rules of interpretation apply:
"Business Day" means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
"Conditions" means the terms and conditions set out in this document as amended from time to time in accordance with clause 20. "Consumer" has the definition given in section 12 of the Unfair Contracts Terms Act 1977.
"Contract" means the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions. "Customer" means the person, firm or company who purchases the Goods from the Supplier.
"Force Majeure Event" has the meaning given in clause 14.
"Goods" means the goods (or any part of them) set out in the Quotation.
"Order" means the order by the Customer for the Goods, as set out in the purchase order form of the Customer.
"Returned Material Authorisation" means the process to be undertaken by the Customer to return the Goods in order for the Supplier to carry out any necessary services on the Goods and a reference to “RMA” shall mean the same thing.
"Quotation" means the quotation for the Goods provided by the Supplier which may include plans, drawings and specifications for the Goods which must be agreed to in writing by the Customer and the Supplier.
"Supplier" means ELUXI LIMITED (registered in England and Wales with company number 07771335).
“Warranty Period” means (unless specified otherwise in the Quotation) a period of 12 months commencing on the date of the Supplier’s invoice for the Goods in question. Where the Supplier raises interim invoices, the warranty period shall commence on the date of the first invoice raised for the Goods.
1.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2 A reference to a party includes its personal representatives, successors or permitted assigns.
1.3 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-
1.4 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.
1.5 A reference to “writing” or “written” includes faxes but not e-
2 BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks 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 Customer to purchase the Goods in accordance with these Conditions. The Customer shall ensure that the terms of the Order and any applicable Quotation submitted to the Customer are complete and accurate before placing the Order.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract. The Customer acknowledges that any statement, representation, recommendation, assurance, warranty or advice (whether made in writing or orally, negligently or innocently) other than expressly set out in this Contract do not form part of the Contract between the Customer and the Supplier.
2.5 Any samples, drawings, descriptive matter, or advertising issued by the Supplier and any descriptions or illustrations contained in the catalogues or brochures of the Supplier are issued or published 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 A quotation for the Goods given by the Supplier shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue.
2.7 Goods supplied pursuant to the Contract are subject to United Kingdom export control and may also be subject to export and/or import restrictions in other countries. The Customer shall not and shall procure that its buyers do not, sell or re-
3.1 The Goods are described in the Quotation.
3.2 The Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with the use of the specification regarding the Goods by the Supplier where the cause of such infringement is from or connected to the Customer’s contribution to the said specification. This clause 3.1 shall survive termination of the Contract.
3.3 The Supplier reserves the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirements.
3.4 No amendment or reconfiguration to the Goods (as described in the Quotation) will be permitted unless the Supplier agrees in writing to such amendment or reconfiguration in its absolute discretion. In the event of an amendment or reconfiguration to the Goods, the Supplier shall be entitled to increase the price of the Goods.
4.1 The Supplier shall ensure that:
4.1.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant reference numbers of the Customer and the Supplier, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.2 if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the expense of the Supplier.
4.2 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") at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 Delivery of the Goods shall be completed on the arrival of the Goods at the Delivery Location. The Customer shall at its own expense be responsible for the unloading of the Goods at the Delivery Location (including but not limited to the necessary machinery and labour for unloading).
4.4 The Customer shall be notified by email or fax of the proposed delivery dispatch date. The Customer cannot reschedule the delivery date without the prior written consent of the Supplier which may be provided in its absolute discretion.
4.5 The Customer shall have 5 Business Days from the completion of delivery at the Delivery Location (as per clause 4.3) to inspect the Goods after which time the Customer shall be deemed to have accepted the Goods.
4.6 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 or failure to deliver the Goods that is caused by a Force Majeure Event or the failure of the Customer to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.7 If delivery of the Goods is late or the Supplier fails to deliver the Goods the Supplier shall at its absolute discretion either:
4.7.1 attempt to re-
4.7.2 refund the purchase price of the Goods to the Customer.
4.8 If the Customer fails to take delivery of the Goods within 3 Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the failure of the Supplier to comply with its obligations under the Contract:
4.8.1 delivery of the Goods shall be deemed to have been completed at 5:00 pm on the tenth Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
4.8.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.9 If 15 Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods.
4.10 Any claim by the Customer for non-
4.11 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 Customer to cancel any other instalment.
4.12 The Customer cannot cancel any Order without the prior written permission of the Supplier which may be provided in the Supplier’s absolute discretion. If such consent is provided by the Supplier, the Customer shall pay the sums set out in clause 12 below.
5.1 The Supplier warrants that the Goods shall throughout the Warranty Period conform in all material respects with the manufacturer’s description and specification.
5.2 Subject to clause 5.3, the Supplier shall, at its option, repair or replace defective Goods, or refund the price of defective Goods in full, if:
5.2.1 the Customer has completed the Supplier’s RMA process during the Warranty Period and within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1; and
5.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the place of business of the Supplier at the cost of the Customer (including import and export duties) and in accordance with the Supplier’s RMA process.
5.3 The Supplier shall not be liable for failure of the Goods to comply with the warranty set out in clause 5.1 in any of the following events:
5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2; or
5.3.2 the defect arises because the Customer failed to follow the oral or written instructions of the manufacturer of the Goods or the
Supplier as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade
practice regarding the same; or
5.3.3 the Customer has used spare parts or other consumable items which have not been approved by the Supplier or the
5.3.4 the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;or
5.3.5 the Customer alters or repairs such Goods without the written consent of the Supplier; or
5.3.6 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.3.7 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements; or
5.3.8 the Customer has not paid for the Goods in full or has any other outstanding debts with the Supplier.
5.4 Where the Goods are provided with, contain, use or require any firmware or software, the Supplier gives no warranties whatsoever in relation to that firmware or software. The Supplier has no responsibility to provide corrections to code, patches or version updates for the said firmware or software and, should a defect arise in the firmware or software, the Supplier will endeavour to obtain technical support from the manufacturer (or its nominated representative) but gives no warranty regarding the provision of those services.
5.5 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the failure of the Goods to comply with the warranty set out in clause 5.1.
5.6 Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
5.7 The Supplier shall (if possible) pass on to the Customer the benefit of any warranty provided by a third party manufacturer of the Goods.
5.8 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6 CUSTOMER WARRANTY
6.1 The Customer warrants that the Goods supplied by the Supplier under this contract will not be sold to or passed on to Consumers.
7 TITLE AND RISK
7.1 The risk in the Goods shall pass to the Customer on completion of delivery.
7.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
7.2.1 the Goods; and
7.2.2 any other goods or services that the Supplier has supplied to the Customer in respect of which payment has become due.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
7.3.1 hold the Goods on a fiduciary basis as the bailee of the Supplier;
7.3.2 store the Goods separately from all other goods held by the
Customer so that they remain readily identifiable as the property of the Supplier;
7.3.3 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
7.3.4 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
7.3.5 notify the Supplier immediately if it becomes subject to any of the events listed in clause 10.2; and
7.3.6 give the Supplier such information relating to the Goods as the Supplier may require from time to time, but the Customer may resell or use the Goods in the ordinary course of its business.
7.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 10.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7.5 The Supplier shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Supplier.
7.6 The Customer grants the Supplier, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
8 PRICE AND PAYMENT
8.1 The price of the Goods shall be the price set out in the Quotation or, if no price is quoted, the price set out in the published price list of the Supplier in force as at the date of delivery.
8.2 The Supplier may increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
8.2.1 any factor beyond the control of the Supplier (including increases in taxes and duties, and increases in labour, materials and other manufacturing costs); or
8.2.2 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
8.3 The Supplier may in its absolute discretion increase or decrease the price of the Goods to take account for foreign exchange fluctuations of 2% or more of the currency rate as set out in the Quotation.
8.4 Unless otherwise stated in the Quotation, the price of the Goods shall include the costs of delivery in accordance with CIP (Incoterms 2010) and the costs and charges of packaging.
8.5 The price of the Goods is exclusive of amounts in respect of value added tax ("VAT"). The Customer 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.
8.6 The Supplier may invoice the Customer for the Goods at any time after the Order has been placed and may (at its option) raise interim invoices for payment of all or part of the price. The Supplier shall endeavour to dispatch its final invoice with the delivery of the Goods.
8.7 The Customer shall pay the Supplier’s invoice in the time frame specified on each invoice. If no time frame is specified then an invoice must be paid in full within 30 days from the invoice date. Payment shall be made to the bank account nominated in writing by the Supplier in the currency set out in the Quotation.
8.8 Time of payment for each invoice is of the essence.
8.9 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (due date), then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above the base rate of the Bank of England as applying from time to time and any debt collection charges incurred. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount and the debt collection charges.
8.10 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-
9 LAWS, REGULATIONS & SAFETY
9.1 The Customer shall be responsible for complying with all applicable import and export laws and regulations regarding the Goods and obtaining all any necessary import and export licences or permits necessary for the delivery of the Goods.
9.2 The Customer warrants to the Supplier that it has informed the Supplier of all laws and regulations affecting the sale, importing and exporting, packaging and labelling of the Goods which are in force in the country in which the Delivery Location is situated (“Local Regulations”) at the date of the Contract.
9.3 The Customer shall give the Supplier as much advance notice as reasonably possible of any prospective changes in the Local Regulations.
9.4 The Customer warrants that it will not use or sell the Goods for use in connection with life support, life sustaining or other medical industries or nuclear industries, or other applications in which failure of the Goods could reasonably be expected to result in personal injury, loss of life or catastrophic property damage.
9.5 If Customer uses or sells the Goods for use pursuant to clause 9.4 the Customer:
9.5.1 acknowledges that such use or sale is at Customer’s sole risk;
9.5.2 agrees that Supplier and the manufacturer of the Goods are not liable, in whole or in part, for any claim or damage arising from such use; and
9.5.3 agrees to indemnify, defend and hold the Supplier and the manufacturer of the Goods harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.
10 THE CUSTOMER'S INSOLVENCY OR INCAPACITY
10.1 If the Customer becomes subject to any of the events listed in clause 10.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
10.2 For the purposes of clause 10.1, the relevant events are, if the other party makes any voluntary arrangements with its creditors; becomes subject to an administration order; goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or if an encumbrancer takes possession, or an administrative receiver or administrator is appointed, of any of the property or assets of the other party; or the other party ceases, or threatens to cease, to carry on business or suffers any action in consequence of debt; or a party reasonably apprehends that any of the events mentioned above is about to occur in relation to the other party and notifies the other party accordingly.
10.3 Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
11 LIMITATION OF LIABILITY
11.1 Subject to clause 11.3, the following provisions set out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-
11.1.1 any breach of the Contract; and
11.1.2 any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
11.2 All warranties, conditions and other terms implied by statute or common law [(save for the conditions implied by section 12 of the Sale of Goods Act 1979)] are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in this Contract excludes or limits the liability of the Supplier for death or personal injury caused by the Supplier’s negligence or for fraud.
11.4 Subject to clause 11.3, the Supplier shall not be liable to the Customer for:
11.4.1 any indirect, consequential, special or punitive loss, damage, costs and expenses;
11.4.2 loss of profit;
11.4.3 loss of business;
11.4.4 loss of reputation;
11.4.5 depletion of goodwill;
11.4.6 loss of, damage to or corruption of data; or
11.4.7 loss resulting from the Customer’s failure to follow the oral or written instructions of the Supplier as to storage, commissioning, installation, use and maintenance of the Goods.
11.5 Subject to clause 11.3, the Supplier’s total liability to the Customer under or connected with the Contract for:
11.5.1 damage to the Customer’s tangible property resulting directly from the Supplier’s negligence or that of its employees shall not exceed £5m for any one event or series of connected events;
11.5.2 any other loss not covered by clauses 11.5.1, shall not exceed 110% of the price of the Goods.
12 LIQUIDATED DAMAGES
12.1 The Supplier and the Customer agree that the amounts set out below represent a genuine pre-
12.1.1 If the Supplier gives its written consent to the cancellation of an Order, or if the Customer takes or fails to take any action which gives the Supplier no alternative but to cancel a delivery of an Order, the Customer shall pay to the Customer a sum equal to 30% of the price set out in the Quotation. Where the Goods are identified as special goods in the Quotation, the Supplier agrees that (because the Goods are bespoke), the amount payable on cancellation will be increased to 100%. 12.1.2 If the Supplier agrees to reschedule any delivery dates, the Customer shall pay to the Supplier an amount equal to 1% of the price of the Goods which are the subject of the delay for each week of delay (or part of a week as the case may be) up to a maximum of 10% of the price.
13 INTELLECTUAL PROPERTY
13.1 All intellectual property rights in the Goods shall remain the exclusive property of the Supplier or the third party manufacturer, unless otherwise agreed in writing by the Supplier. Subject to the Customer paying all monies due to the Supplier under the terms of the Contract and any other contract between the Supplier and the Customer, the Supplier hereby grants to the Customer a nonexclusive, royalty free, non-
14 FORCE MAJEURE
14.1 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-
14.2 If the Force Majeure Event continues to have effect for a period of more than 3 months the Supplier shall have the right to terminate this Contact upon giving 1 month’s written notice of such termination to the Customer.
15 ASSIGNMENT AND SUBCONTRACTING
15.1 The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
15.2 The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Supplier.
16.1 Any notice given to a party under the terms of this 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-
16.2 A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 16.1; if sent by pre-
16.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action or communication by email (where the same is provided for in this Contract).
17.1 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or partprovision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
17.2 If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and Enforceable.
18.1 A waiver of any right or remedy under the Contract 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 preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
19 THIRD PARTY RIGHTS
19.1 A person who is not a party to the Contract shall not have any rights under or in connection with it.
20.1 Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.
21.1 This agreement is drafted in the English language. If this agreement is translated into any other language, the English language text shall prevail.
21.2 Any notice or documentation given under or in connection with this agreement shall be in the English language. If such notice or document is translated into any other language, the English language text shall prevail.
22 GOVERNING LAW AND JURISDICTION
22.1 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-
ELUXI Ltd., Terms & Conditions of Sale
Copyright © ELUXI Ltd-
ELUXI LTD TERMS AND CONDITIONS OF PURCHASE
The following definitions apply unless otherwise specifically stated:
“Customer” means the issuer of this order, ELUXI Ltd.
“Deliverables” means the deliverables, if any, specified in the Purchase Order (and any Statement of Work) to be delivered on or before the Delivery Date.
“Delivery Date” means the date or dates specified in the Purchase Order by which the Supplier is required to deliver the Goods or the Services.
“Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with Services of authorship throughout the world, including but not limited to copyrights, neighbouring rights, moral rights, and mask Services, and all derivative Services thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
“Goods” means tangible goods, specified in the Purchase Order, to be delivered on the Delivery Date
“Services” means the Deliverables, Goods and Services specified in the Purchase Order, including any SOW.
“Statement of Work” or “SOW” means the document specifying, without limitation, the scope, objective, and time frame of the Services that Supplier will perform for Customer.
“Subcontractor” means a third party performing Services under an agreement (a “Subcontract”) with Supplier.
“Supplier” means the person, firm or Company that is providing the services and/or supplies.
“Supplier Personnel” mean Supplier’s employees, consultants, agents, independent contractors and Subcontractors.
“Third Party Intellectual Property” means the Intellectual Property Rights of a third party which Supplier uses or incorporates into the Services.
2 Purchase Order
2.1 This purchase order, together with these terms and conditions, and any attachments and exhibits, statement of work, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference (collectively the “Purchase Order”), constitutes the entire and exclusive agreement between the Customer and the Supplier identified in the Purchase Order.
2.2 Customer’s submission of the Purchase Order is conditioned on Supplier’s agreement that any terms different from or in addition to the terms of the Purchase Order, whether communicated orally or contained in any purchase order confirmation, invoice, acknowledgement, release, acceptance or other written correspondence, irrespective of the timing, shall NOT form a part of the Purchase Order, even if Supplier purports to condition its acceptance of the Purchase Order on Customer’s agreement to such different or additional terms.
2.3 Supplier’s electronic acceptance, acknowledgement of this Purchase Order, or commencement of performance constitutes Supplier’s acceptance of these terms and conditions.
2.4 Notwithstanding the foregoing, if a master agreement covering procurement of the Goods or Services described in the Purchase Order exists between Supplier and Customer, (the “Master Agreement”) the terms of such Master Agreement shall prevail over any inconsistent terms herein.
3.1 Unless Customer expressly instructs otherwise (i) Supplier will deliver all Goods and Services to Customer at the
Delivery Address set forth in the Purchase Order.
(ii) Supplier assumes responsibility for all packaging, shipping and delivery charges including, without limitation, customs, duties, costs, taxes and insurance.
3.2 Time is of the essence in Supplier’s performance of its obligations set out in the Purchase Order. Supplier will immediately notify Customer if Supplier’s timely performance under the Purchase Order is delayed or is likely to be delayed.
Customer’s acceptance of Supplier’s notice will not constitute Customer’s waiver of any of Supplier’s obligations.
3.3 Supplier will preserve, pack, package and handle the Deliverables and Goods so as to protect the Deliverables and Goods from loss or damage and in accordance with best commercial practices in the absence of any specifications
Customer may provide.
3.4 Without limiting the foregoing, Supplier shall observe the requirements of any local laws and regulations relating to hazardous substances or mixtures, including, without limitation, with respect to its accompanying information, classification, packing, labelling, reporting, carriage and disposal.
3.5 Supplier shall include, with each delivery of Goods, a packing list identifying the Purchase Order number, the Customer part number for each of the Goods (if applicable), a description and the quantity of each of the Goods, and the date of shipment.
3.6 Where required by the Customer, the Supplier shall remove from the Customer’s premises all packaging and temporary fixings necessary for the delivery of the Goods or performance of the Services and leave the delivery area and all Customer premises clear of waste.
3.7 Foreign shipments must be covered by commercial invoices/customs invoices in duplicate and also the original copy of the Bill of Lading and certificate of origin.
4 INSPECTION AND ACCEPTANCE
4.1 Customer may reject any or all of the Goods or Services delivered after the Delivery Date or which does not conform to the applicable requirements stated in the Purchase Order, the SOW, or both, within ten (10) business days of Supplier’s
delivery of the Goods or Services.
4.2 At Customer’s option, Customer may:
(i) return the late or non-
(ii) require Supplier to replace the late or non-
(iii) repair the non-
As an alternative to (i) to (iii) inclusive, Customer may accept the non-
4.3 Customer’s payment to Supplier for Goods or Services prior to Customer’s timely rejection of such Goods or Services as non-
4.4 Customer will hold any Goods or Services rejected under this Purchase Order at Supplier’s risk and expense, including storage charges, while awaiting Supplier’s returns shipping instructions. Supplier will bear all return shipping charges,
including without limitation, insurance charges Customer incurs on Supplier’s Behalf.
5 RISK AND TITLE
5.1 Risk of loss for any Deliverables and Goods shall not pass to Customer until acceptance in accordance with clause 4.
5.2 Title in any Deliverables and Goods shall pass to the Customer upon the date of the Purchase Order.
5.3 Where Supplier provides maintenance or repair Services on Customer’s goods, Supplier shall identify such goods as property of the Customer and hereby agrees that title to such goods shall remain with Customer at all times.
6.1 Unless otherwise specified in the Purchase Order, the price for the Goods and/or Services includes all taxes and other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and government imposed surcharges.
7.1 Upon delivery of the Goods and/or completion of the Services, the Supplier shall provide to the Customer a valid invoice, including the following information:
(i) a reference to this Purchase Order and the relevant Master Agreement number (if any);
(ii) a detailed description of the delivered Goods or performed Services, including the date of delivery
(iii) and/or period of Services in respect of which the invoice relates and the relevant quantity;
(iv) an individual reference number for the Customer to quote with remittance of payment;
(v) the price relating to the Goods and/or Services, broken down to reflect the same price components set out in the Purchase Order and breakout from the price any taxes and other charges.
7.2 Supplier shall, promptly and upon request, provide Customer with all relevant records to calculate and verify the amount set out in any invoice.
7.3 Customer may withhold approval and/or money due to the Supplier under this Purchase Order if the Goods or Services (or any part of them) are defective.
8.1 Customer shall pay Supplier the price by the end of the calendar month following the calendar month during which the invoice was issued by Supplier.
9.1 For the purpose of this Section 9, “Change” means a change which Customer directs within the general scope of this Purchase Order, the applicable SOW or both.
9.2 Customer, by written order (“Change Order”), may make Changes in accordance with this Section 9.
9.3 If Supplier asserts that Customer has directed a Change to the cost of or time for performance of the Goods or Services for which Customer has not issued a Change Order, Supplier will promptly notify Customer in writing of the Change,
(i) a description of the action or inaction asserted to have caused the Change;
(ii) an estimate of the equitable adjustment that would be required for Supplier to perform the changed Change Order; and
(iii) a date no less than thirty (30) days from the date of notice by which Customer must respond to Supplier’s notice so that Supplier may proceed with the Services unchanged.
9.4 Customer will evaluate Supplier’s notice of Change in good faith and if Customer agrees to the change, Customer will issue a Change Order to Supplier.
9.5 Supplier shall, as promptly as practicable, after giving the notice of the Change, or within ten (10) days of receiving a Change Order, submit a request for equitable adjustment specifying the adjustment in the price or time for performance resulting from the Change.
9.6 The parties shall negotiate an amendment to the applicable Purchase Order or SOW to incorporate a Change Order providing for an equitable adjustment to the price, time for performance or both.
10 REPRESENTATIONS AND WARRANTIES
10.1 Supplier represents and warrants that
(i) it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order;
(ii) the Services, and Customer’s use of the Services, do not and will not infringe upon any third party’s Intellectual Property Rights, right of publicity or privacy, or any other proprietary rights, whether contractual, statutory or common law;
(iii) the Services conforms to Customer’s specifications, Supplier’s quotation or proposal, and Supplier’s brochures or catalogues, and if none of the foregoing is applicable, then such Services is suitable for the intended use;
(iv) the Goods conform to the description, specifications and service levels set out in the Purchase Order;
(v) the Goods comply with all applicable quality standards and, to the extent not covered by the foregoing, all applicable legislation;
(vi) the Goods are fit for the purpose for which goods of the same kind are commonly supplied or bought as well as for any other purpose which the Customer specifies;
(vii) the Goods are free from material defects in design, material and workmanship.
10.2 Customer warrants and represents to Supplier that it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order.
11 ASSIGNMENT AND SUBCONTRACTING
11.1 Supplier may not assign any of its rights or delegate any of its obligations under the Purchase Order without Customer’s prior written consent.
11.2 Supplier may not subcontract any of its rights or obligations under the Purchase Order without Customer’s prior written consent. If Customer consents to the use of a Subcontractor, Supplier will:
(i) guarantee and will remain liable for the performance of all subcontracted obligations;
(ii) indemnify Customer for all damages and costs of any kind, subject to the limitations in Section 15 (Indemnification), incurred by Customer or any third party and caused by the acts and omissions of Supplier or Subcontractors; and
(iii) make all payments to its Subcontractors. If Supplier fails to timely pay a Subcontractor for Services performed, Customer will have the night, but not the obligation, to pay the Subcontractor and offset any amount due to Supplier by any amount paid to the Subcontractor. Supplier will defend, indemnify and hold Customer harmless for all damages and costs of any kind, without limitation, incurred by Customer and caused by Supplier’s failure to pay a Subcontractor.
11.3 To the extent allowed by applicable law, no person who is not a party to Purchase Order shall be entitled to enforce or take the benefit of any of its terms whether as a result of applicable legislation, custom or otherwise.
12.1 The Purchase Order will remain in effect with respect to any SOW already issued prior to expiration of the term of the Purchase Order until such SOW is either terminated or the Goods or Services are completed and accepted.
13.1 Customer may terminate this Purchase Order, any SOW, or both at any time, for no reason or for any reason, upon fifteen (15) days written notice to Supplier.
13.2 Upon receipt of notice of such termination, Supplier will inform Customer of the extent to which it has completed performance as of the date of the notice and Supplier will collect and deliver to Customer whatever Goods or Services then exists. Customer will pay Supplier for all Goods delivered and accepted as well as all Services performed and accepted through the effective date of the termination, provided that Customer will not be obligated to pay any more than the payment that would have become due had Supplier completed and Customer had accepted the Goods or Services. Customer will have no further payment obligation in connection with any termination.
13.3 Either party may terminate the Purchase Order, any SOW or both, immediately by delivering written notice to the other party upon the occurrence of any of the following events:
(i) a receiver is appointed for either party or its property;
(ii) either party makes a general assignment for the benefit of its creditors;
(iii) either party commences, or has commenced against it, proceedings under any insolvency or debtor's relief law, if such proceedings are not dismissed within sixty (60) days; or
(iv) either party is liquidating, dissolving, or ceasing to do business in the ordinary course.
13.4 Either party may terminate this Purchase Order, any SOW or both, immediately by delivering written notice to the other party for any material breach not remedied within thirty (30) days of receipt of notice of the breach. Customer shall have no further payment obligation to Supplier under any terminated SOW or Purchase Order if Customer terminates the Purchase Order or SOW under this Section 13.4.
13.5 Any obligations or duties which, by their nature, extend beyond the expiration or termination of the Purchase Order or SOW shall survive the expiration or termination of the Purchase Order or SOW.
14 CONFIDENTIAL INFORMATION AND PUBLICITY
14.1 Supplier shall obtain Customer’s written consent prior to any publication, notification, presentation, public announcement, or press release concerning its relationship as a supplier to Customer.
14.2 Supplier shall not use or disclose any data, designs, drawings or other information belonging to or supplied by or on behalf of Customer, except necessary in the performance of the order and only with the knowledge and consent of the Customer. All data, etc. will be immediately returned to the Customer, at Supplier’s cost, upon demand.
14.3 Supplier shall be liable for any loss, damage or destruction to Customers property and data furnished to Supplier and shall be responsible for return such property and data to Customer in as good condition as when received except for reasonable wear and tear or for the utilization of the property a data in accordance with the provisions of the order.
14.4 In the event of a breach in respect of the use of Supplier’s data, Customer shall be liable for all damages arising in connection therewith, including, but not limited to, loss of profits.
15.1 As used in this Section 15, a “Claim” is any claim, demand, loss, damage, liability, cost or expense (including professional fees and costs as incurred) for which one party (the “Indemnifying Party”) may be obligated to defend, indemnify and hold the other party (the “Indemnified Party”) harmless.
15.2 Supplier shall defend, indemnify and hold Customer harmless from and against any and all Claims as incurred, arising out of or in connection with any (i) act or omission of Supplier (including its Subcontractors) in the performance of the Services; or (ii) any infringement of a third party’s Intellectual Property Rights or any other rights.
15.3 Each party will indemnify and hold the other party harmless from and against any and all Claims, as incurred, arising out of any negligent or wilful acts or omissions of the Indemnifying Party which results in personal injury (including death) or damage to tangible property (not including lost or damaged data).
15.4 The Indemnified Party will provide the Indemnifying Party with prompt written notice of the Claim and permit the Indemnifying Party to control the defence, settlement, adjustment, or compromise of any Claim. The Indemnified Party may employ counsel at its own expense to assist it with respect to any Claim. The Indemnified Party will have no authority to settle any Claim on the Indemnifying Party’s behalf.
15.5 If a third party enjoins or interferes with Customer’s use of any Goods or Services, then in addition to Supplier’s obligations under Section 15.2, Supplier will use its best efforts to
(i) obtain any licenses necessary to permit Customer to continue to use the Goods or Services;
(ii) replace or modify the Goods or Services as necessary to permit
Customer to continue to use of the Goods or Services; or if (i) and (ii) are not commercially reasonable, then
(iii) promptly refund to Customer the amount paid for any Goods or Services for which a third party enjoins or interferes with Customer’s use of Goods or Services. .
15.6 Nothing in this Section shall limit any other remedy of the parties.
16.1 Notwithstanding anything else in the Purchase Order or otherwise, Customer will not be liable to Supplier with respect to the subject matter of the Purchase Order under any contract, negligence, strict liability or other legal or equitable theory for any amounts in excess in the amount Customer paid to Supplier in the six months preceding the event or circumstance giving rise to such liability.
16.2 In no event will Customer be liable to Supplier for any incidental, indirect, special, consequential damages or loss of profits arising out of, or in connection with, the Purchase Order, whether or not Customer was advised of the possibility of such damage.
16.3 The limitations will apply notwithstanding any failure of essential purpose of any limited remedy provided herein. Nothing in the Purchase Order limits either party's liability for bodily injury of a person, death, or physical damage to property or any liability which cannot be excluded under applicable law.
17.1 Supplier will secure and maintain insurance providing coverage for liabilities to third parties for bodily injury (personal injury) and damage to property in amounts sufficient to protect Customer in the event of such injury or damage, and will be in compliance with any and all laws, regulations or orders addressing the liabilities of an employer to its employees for injuries and disease suffered in connection with employment. Supplier further will maintain such additional types and limits of insurance as is customary for a company of similar size and similar operations to Supplier in the jurisdiction or jurisdictions in which Supplier’s operations take place.
18 COMPLIANCE WITH LAWS
18.1 Supplier represents and warrants that it will comply with all applicable local and national laws and regulations pertaining to its performance of its obligations under this Purchase Order.
19 INTERNATIONAL TRAFFIC IN ARMS REGULATIONS (ITAR) COMPLIANCE
19.1 The Customer, its employees and its agents are subject to U.S. export control laws that prohibit or restrict
(i) transactions with certain parties, and
(ii) the type and level of technologies and services that may be exported.
These laws include, without limitation, the Arms Export Control Act, the Export Administration Act, and the International Economic Emergency Powers Act, and regulations issued pursuant to these, including the ITAR and the Export Administration Regulations (EAR). As a potential supplier to the Company, the Supplier agrees to comply with all applicable export laws and regulations, including the requirement for obtaining any export authorisation (license or agreement), if applicable. Without limiting the foregoing, the Supplier agrees that it will not transfer any export controlled goods, technical data, and/or services, to include transfer to non U.S. persons (as defined in the ITAR and EAR) employed by or associated with, or under contract to your firm’s lower-
19.2 Supplier shall provide the Company Purchase Requisition contact a completed Request for Suppliers’ Information Export Control Classification form for any items provided by Supplier.
19.3 Supplier warrants its export privileges under U.S. law have not been denied, suspended, or revoked in whole or in part by any U.S. Government entity or agency. Supplier shall notify the Company Purchase Requisition contact immediately if
Supplier’s export privileges are denied, suspended, or revoked in whole or in part by any U.S. Government entity or agency.
20. WAIVER AND SEVERABILITY
20.1 Any action or inaction by Purchaser or failure of Purchaser to enforce right or provision of the order shall not be construed as a waiver or relinquishment of the future exercise of any such rights. A determination that any portion of the order is unenforceable or invalid shall not affect the enforceability or validity of any of the remainder of the order.
21.1 Any notice to be given under the Purchase Order will be in writing and addressed to the party at the address stated in the Purchase Order. Notices will be deemed given and effective
(i) if personally delivered, upon delivery;
(ii) if sent by an overnight service with tracking capabilities, upon receipt;
(iii) if sent by fax or electronic mail, at such time as the party which sent the notice receives confirmation of receipt by the applicable method of transmittal; or if sent by certified or registered mail, within five days of deposit in the mail.
21.2 If there is a conflict between or among the Purchase Order and any documents attached to and incorporated by reference, the conflict will be resolved as follows:
(i) A conflict between the terms of the Purchase Order and those set forth in an exhibit or hyperlink will be resolved in favour of the Purchase Order.
(ii) A conflict between the terms of the Purchase Order and those set forth in an SOW will be resolved in favour of the SOW.
(iii) A conflict between the terms of an exhibit or hyperlink and those set forth in an SOW will be resolved in favour of the SOW.
21.3 If any court of competent jurisdiction holds that any provision of the Purchase Order is illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of the Purchase Order will not be affected or impaired, and all remaining terms of this Purchase Order remain in full force and effect, provided that this provision shall not be applied to defeat the intent of the parties.
21.4 A party’s election not to insist on strict performance of any requirement of the Purchase Order will not operate or be construed to waive any future omission or breach, or any other provision of the Purchase Order.
22 GOVERNING LAW
22.1 The validity, interpretation, and performance of this Purchase Order will be controlled by and construed under the laws of England and Wales.
22.2 The English Courts shall have exclusive jurisdiction over any claim arising under this Purchase Order.
22.3 Notwithstanding the foregoing, either party may seek interim or temporary injunctive relief in any court of appropriate jurisdiction with respect to any alleged breach of such party’s intellectual property or proprietary rights.ELUXI LTD
ELUXI Ltd., Terms & Conditions of Purchase
Copyright © ELUXI Ltd-
1 INFORMATION ABOUT US
1.1 www.eluxi.co.uk is a site operated by ELUXI Limited ("We"). We are registered in England and Wales under company number 07771335 and have our registered office at The Terrace, Rugby Road, Lutterworth, Leicestershire, LE17 4BW. Our VAT number is 122 4880 29. We are a limited company.
2 ACCESSING OUR SITE
2.1 Access to our site is permitted on a temporary basis, and we reserve the right to withdraw or amend the service we provide on our site without notice (see below). We will not be liable if for any reason our site is unavailable at any time or for any period.
2.2 From time to time, we may restrict access to some parts of our site, or our entire site, to users who have registered with us.
2.4 You may use our site only for lawful purposes. You may not use our site:
2.4.1 in any way that breaches any applicable local, national or international law or regulation.
2.4.2 in any way that is unlawful or fraudulent, or has any unlawful or fraudulent purpose or effect.
2.4.3 for the purpose of harming or attempting to harm minors in any way.
2.4.4 to transmit, or procure the sending of, any unsolicited or unauthorised advertising or promotional material or any other form of similar solicitation (spam).
2.4.5 to knowingly transmit any data, send or upload any material that contains viruses, Trojan horses, worms, time-
2.5 You are responsible for making all arrangements necessary for you to have access to our site. You are also responsible for ensuring that all persons who access our site through your internet connection are aware of these terms, and that they comply with them.
3 INTELLECTUAL PROPERTY RIGHTS
3.1 We are the owner or the licensee of all intellectual property rights in our site, and in the material published on it. Those works are protected by copyright laws and treaties around the world. All such rights are reserved.
3.2 You may print off one copy, and may download extracts, of any page(s) from our site for your personal reference and you may draw the attention of others within your organisation to material posted on our site.
3.3 You must not modify the paper or digital copies of any materials you have printed off or downloaded in any way, and you must not use any illustrations, photographs, video or audio sequences or any graphics separately from any accompanying text.
3.4 Our status (and that of any identified contributors) as the authors of material on our site must always be acknowledged.
3.5 You must not use any part of the materials on our site for commercial purposes without obtaining a licence to do so from us or our licensors.
4 RELIANCE ON INFORMATION POSTED
4.1 Commentary and other materials posted on our site are not intended to amount to advice on which reliance should be placed. We therefore disclaim all liability and responsibility arising from any reliance placed on such materials by any visitor to our site, or by anyone who may be informed of any of its contents.
5 OUR SITE CHANGES REGULARLY
5.1 We aim to update our site regularly, and may change the content at any time. If the need arises, we may suspend access to our site, or close it indefinitely. Any of the material on our site may be out of date at any given time, and we are under no obligation to update such material.
6 OUR LIABILITY
6.1 The material displayed on our site is provided without any guarantees, conditions or warranties as to its accuracy. To the extent permitted by law, we, other members of our group of companies and third parties connected to us hereby expressly exclude:
6.1.1 all conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity.
6.1.2 any liability for any direct, indirect or consequential loss or damage incurred by any user in connection with our site or in connection with the use, inability to use, or results of the use of our site, any websites linked to it and any materials posted on it, including:
22.214.171.124 loss of income or revenue;
126.96.36.199 loss of business;
188.8.131.52 loss of profits or contracts;
184.108.40.206 loss of anticipated savings;
220.127.116.11 loss of data;
18.104.22.168 loss of goodwill;
22.214.171.124 wasted management or office time; and
126.96.36.199 whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable, provided that this condition shall not prevent claims for loss of or damage to your tangible property or any other claims for direct financial loss that are not excluded by any of the categories set out above.
6.2 This does not affect our liability for death or personal injury arising from our negligence, nor our liability for fraudulent misrepresentation or misrepresentation as to a fundamental matter, nor any other liability which cannot be excluded or limited under applicable law.
7 INFORMATION ABOUT YOU AND YOUR VISITS TO OUR SITE
7.2 We may obtain information about your general internet usage by using a cookie file which is stored on your browser or the hard drive of your computer. Cookies contain information that is transferred to your computer's hard drive. They help us to improve our site and to deliver a better and more personalised service. Some of the cookies we use are essential for the site to operate.
8 UPLOADING MATERIAL TO OUR SITE
8.1 Whenever you make use of a feature that allows you to upload material to our site, or to make contact with other users of our site, you must comply with the content standards set out in condition 2.4. You warrant that any such contribution does comply with those standards, and you indemnify us for any breach of that warranty.
8.2 Any material you upload to our site will be considered non-
8.3 We will not be responsible, or liable to any third party, for the content or accuracy of any materials posted by you or any other user of our site.
8.4 We have the right to remove any material or posting you make on our site if, in our opinion, such material does not comply with the content standards set out in condition 2.4.
9 VIRUSES, HACKING AND OTHER OFFENCES
9.1 You must not misuse our site by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to our site, the server on which our site is stored or any server, computer or database connected to our site. You must not attack our site via a denial-
9.2 By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-
9.3 We will not be liable for any loss or damage caused by a distributed denial-
10 LINKING TO OUR SITE
10.1 You may link to our home page, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way as to suggest any form of association, approval or endorsement on our part where none exists.
10.2 You must not establish a link from any website that is not owned by you.
10.3 Our site must not be framed on any other site, nor may you create a link to any part of our site other than the home page. We reserve the right to withdraw linking permission without notice.
10.4 If you wish to make any use of material on our site other than that set out above, please send your request to firstname.lastname@example.org.
11 LINKS FROM OUR SITE
11.1 Where our site contains links to other sites and resources provided by third parties, these links are provided for your information only. We have no control over the contents of those sites or resources, and accept no responsibility for them or for any loss or damage that may arise from your use of them.
12 JURISDICTION AND APPLICABLE LAW
12.1 The English courts will have non-
13 TRADE MARKS
13.1 The ELUXI trade mark is our trade mark.
15 YOUR CONCERNS
15.1 If you have any concerns about material which appears on our site, please contact email@example.com.
Thank you for visiting our site.
ELUXI Ltd., Website Use Terms & Conditions
Copyright © ELUXI Ltd-
TERMS OF WEBSITE USE