1. Definitions
“Company” means Test-Measurement.co.uk Limited or its permitted assigns.
“Conditions” means these terms and conditions.
“Contract” means any contract between the Company and the Customer for the sale and purchase of Supplies.
“Customer” means the person(s) or company whose order for the Supplies is accepted by the Company.
“Goods” means any goods supplied or to be supplied by the Company to the Customer.
“Delivery address” means the address to which the Customer requests the Company to arrange delivery (such arrangements being made for and on behalf of the Customer).
“Services” means any services supplied or to be supplied by the Company to the Customer.
“Supplies” means any Goods or Services.
“in writing” includes electronic communications.
2. Conditions
2.1 All orders are accepted by the Company subject to and in accordance with these Conditions. These Conditions override and exclude any terms or conditions in or referred to in any negotiations or course of dealing between the Company and the Customer or set out in the Customer’s standard terms and conditions.
2.2 If there is any conflict between
i. the other provisions within the company website or data sheets and these Conditions; or
ii. the provisions of the customer order or contract and these Conditions,
these Conditions will prevail unless the Company agrees otherwise in writing.
2.3 Together with any terms accepted by the Company in connection with an order, these Conditions constitute the entire agreement between the Company and the Customer in relation to the Supplies ordered. No variation to these Conditions is permitted unless expressly authorised in writing by a director of the Company.
2.4 Any advice or recommendation given by the Company or its employees as to the storage, application or use of the Goods which is not confirmed in writing by the Company is followed or acted upon entirely at the Customer’s own risk, and accordingly the Company shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in the company website, any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Company shall be subject to correction without any liability on the part of the Company.
3. Orders
3.1 The Company reserves the right to decline to trade with any company or person.
3.2 To avoid duplication, written confirmation of telephone orders must be clearly marked ‘Confirmation only’.
3.3 The Company will not accept liability for orders not so marked and duplicate orders will be charged accordingly.
3.4 Once accepted, no order may be cancelled without the prior written agreement of a director of the Company. Without limiting the generality of this, orders for Goods which are not in the Company website or non stock items may not be cancelled.
3.5 Orders for Goods are usually accepted by the Company by despatching the Goods provided, however, that despatch will not be deemed acceptance of order where the price for the goods does not correctly match the specification for the products ordered.
3.6 The Company reserves the right to make any changes to the specification of the Goods which are required to conform with any applicable statutory or European Union requirements or, where the Goods are to be imported, to the manufacturers national standards and approvals, where these changes do not materially affect the Goods quality or performance.
4. Prices
4.1 Prices for Goods are in £ sterling, exclusive of carriage and exclusive of VAT unless otherwise stated.
4.2 Where the Company agrees to trade in Euro or US Dollars, it will calculate an exchange rate for each order dependant on historical exchange fluctuations over the previous 12 months. The company reserves the right to increase prices due to unforeseen extreme fluctuations in foreign currency exchange rates.
4.3 The Company has used all reasonable endeavours to ensure that prices for Goods are accurately set out in the Website but reserves the right to change its prices without notice at any time.
4.4 The Company reserves the right, by giving notice to the Customer, to increase the price of Goods on any order at any time before delivery, to reflect any increase in the cost which is due to
i. any change in delivery dates, quantities or specifications for the Goods requested by the Customer, or
ii. any delay caused by any instructions of the Customer, or
iii. failure of the Customer to give the Company adequate information or instructions.
4.5 Prices charged will be those prevailing when an order is accepted (subject to 4.2, 4.3, 4.4). Where Supplies are to be made in instalments (‘Scheduled Delivery’) the price payable for them will be that applicable at the time of despatch of the first batch of Supplies but, where scheduled delivery may continue for a period of 90 days or more, the Company reserves the right to charge the Customer further amounts if the price of the Supplies increases before the end of that period.
5. Payment
5.1 Except where a credit account has been opened for the Customer by the Company, payment shall be made in advance. Where payment is made by credit card and payment is not honoured the Customer will be liable for the balance and any costs invoked. The company reserves the right to refuse a purchase, with a credit card, if certain criteria are not met. If the company suspects a problem we will request payment by alternative means, other than credit cards. Fraudulent use of a credit card will be reported to the authorities which could result in prosecution.
5.2 Payment of the invoice for approved credit sales must be made in full within 28 days of the date shown on the invoice. If the Customer fails to make payment by the due date then, without prejudice to any other right or remedy, the Company shall be entitled to:
i. cancel the order or suspend any further deliveries or performance;
ii. appropriate any payment made by the Customer to such of the Goods (or the Goods supplied under any other contract) as the Company may think fit; and
iii. charge interest (both before and after any judgment) on the amount unpaid at the rate of 2% monthly (days being calculated at 1/28th of the monthly rate).
5.3 If legal action is taken to recover monies due to the Company then the Company reserves the right to charge the Customer an administration fee to cover all and any costs incurred.
6. Credit Accounts
A Customer wishing to open a credit account must furnish such information as may be requested by the Company and the Company may make a search with a credit reference agency. The Company reserves the right in its absolute discretion to grant, refuse or discontinue any credit facilities or reduce or suspend any credit limit at any time.
7. Delivery
7.1 The Company will use all reasonable endeavours to despatch Goods ordered before 12 noon Monday to Friday on the same day and all Goods ordered after such times the next working day, provided that those Goods are in stock. Carriage charges and shipping carton sizes are, where possible, stated on the Company website and are correct at the time of update.
7.2 Where Goods ordered are not in the company website or are non-stock items, it may not be possible for the Company to arrange next day despatch but the Company will make reasonable endeavours to notify the lead times for such Goods, where known.
7.3 Any dates quoted for delivery of Goods are approximate only and the Company shall not be liable for any Customers fees or compensation agreements as a result of a delay in delivery of Goods howsoever caused.
7.4 The Goods may be delivered by the Customer in advance of the quoted delivery date upon giving reasonable notice to the Customer.
7.5 The Customer may request delivery or performance by instalments for up to 12 months from the date of order. The Company reserves the right to deliver or perform by instalments. Failure to meet a delivery or performance date where deliveries or performance are by instalment shall not prevent or restrict the Company from making further deliveries or rendering subsequent performance under the relevant Contract by instalment.
7.6 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of the Seller's fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
i. store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
ii. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7.7 Delivery will be made to the address specified by the Customer. The Company reserves the right to arrange delivery of Goods directly from the manufacturer or supplier of those Goods to the Customer. The Company may use any method of delivery available to it.
7.8 The Company will use reasonable endeavours to meet delivery and/or performance estimates but, except as set out in 8 below, in no circumstances shall it be liable to compensate the Customer for non-delivery, non-performance or late delivery or performance. Time for delivery and/or performance will not be of the essence.
7.9 The Company reserves the right to delay despatch for a number of reasons, including but not limited to perform any necessary credit or anti-fraud checks or procedures or to ensure that payment has been received in cleared funds in full. Where despatch is delayed for such reasons, the Company will use reasonable endeavours to inform the Customer.
8. Inspection, defects and non delivery
8.1 The Customer must inspect the Goods as soon as is reasonably practicable after delivery or, except as set out in 15 below, the Company shall not be liable for any defect in the Goods unless notice is given to the Company in writing within 10 days of the date of delivery.
8.2 The Company does not write software comprised in the Goods and it is the Customer’s responsibility to check for the presence of computer viruses before the Goods are used.
8.3 The quantity of any consignment of Goods, as recorded by the Company upon despatch from the Company’s place of business, the supplier’s place of business, or the manufacturer’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery, unless the Customer can provide conclusive evidence to the contrary. The Company will not be liable for any non-delivery of Goods or non-performance of Services unless written notice is given to the Company within 10 days of the date when Goods should have been delivered or the Services performed in the ordinary course of events.
8.4 Where any valid claim based on any defect in the quality or condition of any of the Goods (or any part), or their failure to meet specification, when notified in accordance with these Conditions, the Company will replace the defective Goods or part free of charge or, at the Company’s sole discretion, (upon receipt of returned items) refund to the Customer the price of such defective Goods (subject to a limit equal to the net goods value of the original defective item) and the Company shall have no further liability to the Customer.
8.5 In the event of a product recall being necessary, the Buyer will co-operate with the reasonable requirements of the supplier or manufacturer of the Goods in accordance with best practice for product safety.
9. Returns
9.1 Prior to returning any Goods to the Company for any reason, the Customer must contact the Company to obtain a returns authorisation number (‘RMA’). All Goods are returned at the Customer’s risk and expense, and should be returned undamaged by the Customer in their original packaging. The Customer is responsible for returning Goods to the Company and for providing proof of delivery of such return.
9.2 Any claim by the Customer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification or any shortage shall (whether or not delivery is refused by the Customer) be notified to the Company within 10 days from the date of arrival of Goods at the Delivery Address or (where the defect or failure was not apparent upon reasonable inspection) within a reasonable time after discovery of the defect or failure. If the Customer does not so notify the Company, the Customer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
9.3 All goods should be returned within the products original packaging together with all associated accessories. The Company reserves the right to charge for replacing packaging and if returned goods are missing parts, such as mains adapters etc, the Company reserves the right to charge for said items or remove the items from any replacement goods to be dispatched.
9.4 Any goods returned to us damaged due to unsuitable packaging will not receive a refund. It is the customer’s responsibility to ensure goods being returned arrive back to us in a saleable condition. We will charge for any damage sustained in transit or whilst in your possession. Please include your name, address and returns authorisation number with all goods returned.
10. Description
All specifications, drawings, illustrations, descriptions and particulars of weights, dimensions, capacity or other details including, without limitation, any statements regarding compliance with legislation or regulation (together “Descriptions”) wherever they appear (including without limitation in the Company website, on data sheets, application notes, despatch notes, invoices or packaging) are intended to give a general idea of the Goods, but will not form part of the Contract. If the Description of any Goods differs from the manufacturer’s description, the latter shall be deemed to be correct. The Company shall take all reasonable steps to ensure the accuracy of Descriptions but relies on such information, if any, as may have been provided to it by its suppliers and accepts no liability in contract or tort or under statute or otherwise for any error in or omission from such descriptions whether caused by the Company’s negligence or otherwise. The Company may make changes to the Goods as part of a continuous programme of improvement or to comply with legislation.
11. Risk and ownership
11.1 The risk of damage to or loss of Goods will pass to the Customer when the Goods are unloaded from the Company’s carriers at the Customer’s premises.
11.2 Ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due from the Customer to the Company on any account whatsoever.
11.3 Until ownership passes to the Customer, the Customer must hold the Goods on a fiduciary basis as the Company’s bailee. If payment is not received in full by the due date, or the Customer passes a resolution for winding up or a court shall make an order to that effect, or a receiver or administrator is appointed over any assets or the undertaking of the Customer or an execution or distress is levied against the Customer, the Company shall be entitled, without previous notice, to retake possession of the Goods and for that purpose to enter upon any premises occupied or owned by the Customer.
12. Performance and fitness for purpose
12.1 Unless any performance figures, tolerances or characteristics have been specifically and expressly warranted by a director of the Company in writing, the Company accepts no liability for any failure of the Goods to comply with such criteria, whether attributable to the Company’s negligence or otherwise.
12.2 The responsibility for ensuring that Goods are sufficient and suitable for a particular purpose is the Customer’s, unless specifically stated in writing by a director of the Company. Any advice or recommendation given by an employee of the Company which is not confirmed in writing by a director of the Company is acted on entirely at the Customer’s risk and the Company shall not be liable for any such advice or recommendation which is not so confirmed.
12.3 The Customer shall be responsible for ensuring the suitability of goods (including any applicable specification), as associated with the relevant Part Number and Data Sheet, or, where there is no Data Sheet, the specification posted on the website from the original manufacturer.
12.4 It is the Customers responsibility to ensure correct installation, calibration and commissioning where necessary, is carried out by a qualified, approved engineer.
13. Warranty/Guarantee
13.1 The Company will endeavour to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer of Goods.
13.2 In addition, the Company will, free of charge, at the Company’s discretion, repair or replace Goods which are proved to the reasonable satisfaction of the Company to be damaged or defective due to faulty materials, workmanship or design. Software programs are supplied on the strict understanding that the Company does not warrant their function to be free from defects or error.
13.3 This obligation will not apply:
i. if the defect arises because the Customer has altered or repaired such Goods without the written consent of the Company;
ii. because the Customer did not follow the manufacturers’ instructions for storage, usage, installation, use or maintenance of the Goods;
iii. if the Customer has failed to notify the Company of any defect in accordance with Condition 8 where the defect should have been reasonably apparent on reasonable inspection; or
iv. if the Customer fails to notify the Company of the defect within 12 months (or such other period as the Company shall specify at the time of acceptance of the order for the Supplies) of the date of despatch of the Goods or performance of the Services.
13.4 Any replacement Supplies made or Goods repaired under this Condition 13 will be guaranteed on these terms for any unexpired portion of the period of guarantee given on the original Supplies. Any Goods which have been replaced will belong to the Company.
13.5 The Customer grants to the Company and its employees, agents and representatives a right to enter onto its premises to effect any repair or replacement under this Condition 13. The Customer shall ensure that the Company’s employees, agents and representatives are provided with a safe and secure working environment while at its premises and the Customer shall be responsible for isolating any computers or processors requiring repair or replacement from its network and for making backup copies of any information on such computers or processors before the Company’s arrival on site.
13.6 Except as set out in Condition 14.1, the Company’s sole obligation and liability, should any Goods prove damaged or defective in accordance with this Condition 13, shall be limited to, at the Company’s discretion, the repair or replacement of the relevant Goods or a refund of the net price paid for the relevant Goods.
13.7 Except as set out in 14.1 below and 8 above, this Condition is the Company’s sole obligation and the Customer’s sole remedy for defective Goods and is accepted by the Customer in substitution for all express or implied representations, conditions or warranties, statutory or otherwise, as to the satisfactory quality, fitness for purpose or performance of the Goods (or any materials used in connection therewith) or the standard of workmanship of the Services and all such representations, conditions and warranties are excluded.
14. Exclusion of Liability
14.1 The Company does not exclude its liability to the Customer:
i. For breach of the Company’s obligations under section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982;
ii. For personal injury or death arising as a result of the Company’s negligence;
iii. Under section 2(3) of the Consumer Protection Act 1987;
iv. For any matter which it would be illegal for the Company to exclude or to attempt to exclude its liability; or
v. For fraud or fraudulent misrepresentation.
14.2 Except as provided in Conditions 8 (Inspection, defects and non delivery), 12 (Performance and fitness for purpose), and 13 (Warranty/Guarantee) and Condition 14.1, the Company will be under no liability to the Customer whatsoever (whether in contract, tort, (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct loss or pure economic loss, loss of profits, loss of business, loss of use, loss of data, computer downtime, depletion of goodwill, business interruption, increased purchasing or manufacturing costs, loss of opportunity, loss of contracts and like loss and for any loss or damage which is not a reasonably foreseeable result of any breach of the Conditions howsoever caused or arising out of or in connection with:
i. Any of the Supplies, or the manufacture, sale, performance or supply or failure or delay in performance or supply of the Supplies by the Company or on part of the Company’s employees, agents or sub-contractors;
ii. Any breach by the Company of any of the express or implied terms of the Contract;
iii. Any use made or resale or on-supply of any of the Supplies or any product incorporating any of the Goods or developed using the Supplies;
iv. Any acts or omissions of the Company at the Customer’s premises;
v. Any statement made or not made or advice given or not given by or on behalf of the Company, including as to compliance with legislation or regulation; or
vi. Otherwise under the Contract.
14.3 And the Company hereby excludes to the fullest extent permissible at law all conditions, warranties and stipulations, express (other than those set out in these Conditions or given in accordance with Condition 12) or implied, statutory, customary or otherwise which but for such exclusion, would or might subsist in favour of the Customer.
14.4 Save as set out in Condition 14.1 the Company’s total liability in contract, tort, (including negligence), breach of statutory duty, misrepresentation or otherwise shall be limited to repairing or replacing Goods or in the case of Services, re-performing the Services or, at the Company’s option, refunding monies already paid in respect of the Supplies.
15. Business customers
The Company is a business to business supplier. The website and any other product brochures produced by the Company are intended for use by business customers. By ordering, the Customer confirms that he, she or it wishes to obtain the Goods for the purposes of his, her or its business and will be using a qualified engineer to carry out the installation of the goods supplied.
16. Force majeure
The Company shall not be liable to the Customer in any manner or be deemed to be in breach of these Conditions because of any delay in performing or any failure to perform any of the Company’s obligations under these Contract if the delay or failure was due to any cause beyond the Company’s reasonable control (which shall include, but not be limited to government actions, war, fire, explosion, flood, import or export regulations or embargoes, labour disputes or inability to obtain or a delay in obtaining supplies of Goods or labour, failure or breakdown of machinery). The Company may, at its discretion, delay the performance of, or cancel the whole or any part of a Contract.
17. Export
17.1 The Customer is responsible at its own expense for obtaining any licence and complying with any export regulations in force within the United Kingdom and in the country for which the Goods are destined and for the payment of any duties thereon
17.2 Certain Goods imported from the United States of America by the Company are subject to specific restrictions. With respect to goods manufactured in or originating from the United States, the Customer agrees to comply with all applicable export laws, restrictions and regulations of the United States or foreign agencies or authorities and shall not import, export or transfer for the purpose of re-export, any product to any prohibited or embargoed country or to any denied, blocked, or designated person or entity as mentioned in any such U.S. or foreign law or regulation.
17.3 The Customer represents and warrants that it is not on the Denied Persons, Specially Designated Nationals or Debarred Persons List and is not otherwise prohibited by law from purchasing the Supplies.
17.4 The Company reserves the right not to supply certain customers or countries and to require from the Customer full details of the end use and final destination of the Goods.
18. General
18.1 Any notice for the purposes of these Conditions shall be in writing addressed to the Company at the fax, e-mail, geographical or other address used for the placing or accepting of orders pursuant to this provision to the party giving the notice.
18.2 Failure by the Company to enforce or partially enforce any provision of these Terms and Conditions will not be constrained as a waiver of any rights under these Conditions of Supply.
18.3 The Company shall be entitled, without the consent of or notice to the Customer, to assign the benefit, subject to the burden, of these Conditions and/or any Contract to any company in its group (as defined in section 53(1) of the Companies Act 1989) at any time.
18.4 Except as set out in Condition 14(Exclusion of Liability), the parties to the Contract do not intend that any of its terms will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
18.5 All Contracts shall be governed by and interpreted in accordance with English law and the Customer submits to the jurisdiction of the English Courts.
These conditions supersede all previous issues.
August 2009
Test-Measurement.co.uk Limited
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