Formation and Application of Contract
Any order accepted by Sercon Ltd hereon referred to as SERCON whether orally or in writing is subject to these Terms and Conditions. The Contract of Agreement incorporating these Terms and Conditions of Sale shall constitute the entire understanding between the parties relating to the products to be purchased hereunder and shall supersede any previous communication, representation or agreements by either party whether oral or written. Acceptance of deliveries hereunder shall constitute acceptance by the Customer of these Terms and Conditions of Sale. No change of any of the terms and conditions herein shall be valid unless in writing signed by an authorised representative of each.
Unless otherwise agreed to in writing by SERCON, all quotations expire thirty (30) days after the date of the quotation or, if earlier, the end of the ordering period of any purchase agreement against which the quotation is issued. All prices quoted are valid only if the Customer’s requested delivery date (including any change orders) is within six (6) months of the date on which the original order is placed. Unless otherwise agreed in writing by SERCON, all prices are exclusive of duties, value added and similar local taxes. Such taxes, when applicable, shall appear as separate items on SERCON’s invoice.
Deliveries of any products purchased shall be subject to SERCON’s availability schedule. SERCON shall make every reasonable effort to meet any delivery date(s) quoted or acknowledged but shall not be liable for any damage or loss arising directly or indirectly from delay in delivery. In the event of delivery being substantially delayed by circumstances beyond their control, SERCON will be entitled to deliver the goods at a later date, provided that this is not more than six (6) months after the original delivery date, or to treat the contract as terminated and to notify the Customer in writing accordingly. Upon such termination SERCON shall return to the Customer any prepayments made and thereafter neither party shall have any rights against the other.
Prices include packing in accordance with SERCON’s usual practice.
SERCON’s standard terms are FOB Crewe, UK. Where prices for carriage and insurance are shown in quotations, these are estimates given in good faith. The method and appropriate insurance for onward delivery will be at SERCON’s discretion and SERCON will invoice the actual costs incurred.
Delays in Performance
SERCON shall not be liable for delays in performance or non-performance due to causes beyond its control including (without limiting the foregoing) Act of God, legislation, war, fire, flood, drought, failure of power supply, lock-outs, strikes or owing to any inability to procure materials required for their performance of the contract. In the event of non-performance due to causes beyond SERCON’s control continuing for more than six (6) months, either party may, by giving notice, terminate the agreement as to products not yet delivered.
Payment Terms are as shown on SERCON’s written quotation/invoice.
Title and Risk
Goods supplied by SERCON shall remain the property of SERCON until payment in full has been received from the Customer. The Customer shall be liable for any loss or damage to the goods between the date of shipment and the date of full payment. Products shall be deemed to have been delivered to the Customer complete and undamaged if no claim is received by SERCON within seven (7) days after date of invoice. Where equipment is defective for any reason SERCON’s liability shall be limited to rectifying such defect.
Acceptance of Products
- a) Acceptance shall be accomplished using applicable procedures or programmes established by SERCON.
- b) If installation by SERCON is included in the purchase price, acceptance shall occur at the installation site when SERCON demonstrates that the applicable diagnostic or verification programmes work properly or the product is otherwise demonstrated to be in a normal operating condition. If installation is scheduled or delayed by the Customer for more than thirty (30) days after delivery, the Customer shall be deemed to have accepted the products on the thirty first (31st) day from the date of delivery.
- c) If installation by SERCON is not included in the purchase price, acceptance by the Customer shall be presumed.
Site preparation and supplies such as gases, compressed air and electrical supplies are the responsibility of the Customer.
No variation shall be made to the scope or terms of any order resulting from this contract without the prior written consent of SERCON.
In the event of the Customer cancelling an order, such cancellation must be notified in writing to the Company, and SERCON reserves the right to impose a cancellation charge up to the full value of the contract plus any additional charges incurred.
Descriptive Matter, etc
Unless otherwise specified in our quotation all drawings and particulars of weights and dimensions submitted therewith are approximate only. Descriptions and illustrations contained in our catalogue, price lists and other advertisement matter are intended merely to present a general idea of the equipment described therein, and none of these shall form part of the contract.
SERCON shall have the right to make changes in design or specifications of the products mentioned herein at any time provided that no such change shall adversely affect the performance of the said products.
Unless otherwise agreed to in writing, copyrighted materials (software and printed documentation) may not be copied.
In the event of the Customer suffering bankruptcy, insolvency or the appointment of a receiver or assignee for the benefit of creditors or winding-up proceedings, SERCON shall have the right to terminate this agreement, and in any such event, or in the event that payment is in arrears in whole or in part. The Customer’s right of possession of products not then paid for in full shall cease and SERCON may for the purpose of recovery of its products enter upon the Customer’s premises in order to repossess the same.
SERCON warrants its hardware products against defects in materials, workmanship and design. If SERCON receives notice of such defects during the warranty period, SERCON shall, at its option, either repair or replace hardware products which prove to be defective. Selected remanufactured parts equivalent to new in performance may be supplied by SERCON as warranty replacements. Consumables such as seals, chemicals and filaments (MS and TCD) are excluded from the warranty. SERCON warrants that its software and firmware products designated by SERCON for use with a hardware product, when properly installed on that hardware product, will not fail to execute their programming instructions due to defects in materials and workmanship. If SERCON receives notice of such defects during the warranty period, SERCON shall replace software media and firmware which do not execute their programming instructions due to such defects. SERCON does not warrant that the operation of the software, firmware or hardware shall be uninterrupted or error free.
- a) Limitation of Warranty: The foregoing warranty shall not apply to defects arising from: 1. Incorrect operation by the Customer; 2.Improper or inadequate maintenance by the Customer; 3. Customer-supplied software or interfacing; 4. Unauthorised modification or misuse; 5. Operation outside of the environmental specifications for the product or 6. Improper preparation and maintenance of the site.
- b) Duration and Commencement of Warranty Period: Products are covered for 12 months after the date of shipment or, where the purchase price includes installation by SERCON, after the date of installation.
- c) Place of Performance: Within SERCON’s service travel areas as defined by SERCON, warranty services and installation services for products installed by SERCON shall be performed at the Customer’s facility at no charge. Outside the said travel areas, the said warranty and installation services shall be performed at the Customer’s facility only upon SERCON’s prior agreement and the Customer shall pay SERCON’s round trip expense and applicable additional expenses for such services. In all other cases products shall be returned to a service facility designated by SERCON. For products without a defined service travel area, warranty and installation services shall be at SERCON’s designated facility. The customer at the discretion of SERCON can fit warranty parts.
On-site warranty and installation services are provided at the initial installation point. If products eligible for on-site warranty and installation services are moved from the initial installation point, the warranty shall remain in effect only if the Customer purchases additional inspection or installation services at the new site.
- d) Transport Charges, etc: The Customer shall prepay shipping charges (and shall pay all duties and taxes) for products returned to SERCON for warranty service. Except for products returned to the Customer from another country, SERCON shall pay for return of products to the Customer.
- e) SERCON’s Liability: SERCON’s liability under this clause shall be in lieu of any warranty or condition implied by law as to the quality or fitness for any particular purpose of the products.
- f) Consumer Transactions: The above warranty does not apply to consumer transactions except in so far as it adds to the Customer’s rights implied by statute.
SERCON shall not be responsible for any injury, loss or damage resulting from the implementation of recommendations and advice given by SERCON’s servants, distributors or agents concerning the application and use of goods supplied, provided that such recommendations and advice were given in good faith.
Public and Products Liability
Any claims against SERCON in respect of damage to property or persons shall be limited to the value of the contract.
All Risks Insurance
SERCON shall not be liable to loss or damage to any of the following whilst they are on the Company’s premises, in possession of Company personnel, or in transit to and from the Company’s works: a) Free issue materials; b) Drawings and specifications; c) Equipment on loan; d) Goods returned under warranty. Unless the Customer has been advised in writing, the Company’s insurance cannot protect the above items and Customers are advised to make their own arrangements.
Export Administration Regulations
SERCON shall be responsible for applying for any necessary authorisations from export control authorities to enable delivery to be made to the Customer. The Customer shall provide any information required in support of such applications. Delivery of products is subject to such authorisations being available at time of delivery. The customer undertakes not to deal with the products or technical data in violation of UK or US export administration and other applicable regulations. The Customer shall be responsible for obtaining any necessary authorisations for re-export or trans-shipment from the United Kingdom.
Severability and Waiver
In the event that one of these Terms and Conditions shall be found to be void but would be valid if some part hereof were deleted or the period or area of application reduced such term shall apply with such modification as may be necessary to make it valid and effective. Failure to enforce these Terms and Conditions or any one of them by SERCON shall not be regarded as a waiver of these Terms and Conditions.
If at any time any question, dispute or difference whatsoever shall arise between the Customer and SERCON, upon, in relation to or in connection with the contract, either may give to the other notice in writing of the existence of such question, dispute or difference, and the same shall be referred to the Arbitration of a person to be mutually agreed upon. The aggrieved party will bear the costs of arbitration.
- a) Any required notices shall be given in writing at the address of each party set forth in the attachments hereto, or to such other address as either party may substitute by written notice to the other.
- b) The customer may not assign or transfer any rights or obligations herein without the prior written consent of SERCON.
- c) The Agreement shall be in all respects governed by and construed in accordance with the laws of England and Wales. The Courts of Justice of England and Wales shall have jurisdiction in all matters pertaining to or arising out of the Agreement.