1. Preamble
1.1 These conditions
shall apply to any contract (“the Contract”) for
the supply of goods (“the Goods”)
by AEC Power Control Limited (“AEC”) to its customer
(“Customer”) and shall apply to the exclusion
of all other terms and conditions (including any terms and
conditions which the Customer purports to apply).
2. Conclusion and Scope
of Contract
AEC’ offers are non-binding
and the Customer’s acceptance of offers does not constitute
a binding contract. A Contract is only concluded, when AEC
has issued an Order Acceptance to the Customer and on the
conditions stipulated or referred to therein.
2.2 Technical data, photos, drawings and
other information contained in AEC’s’ brochures
and other material and information issued by AEC is approximate
only, does not form part of the Contract and may not be relied
upon by the Customer, except to the extent that AEC has specifically
referred thereto in the Order Acknowledgement. AEC reserves
the right to make changes to such information from time to
time without prior notice to the Customer.
2.3 The quantity and description of the Goods
shall be as set out in AEC’s Order Acceptance.
2.4 The Customer shall supply AEC with all
information, necessary for AEC’s fulfilment of the Contract.
2.5 AEC reserves the right to make any changes
in the specification of the Goods which are required to conform
with any applicable statutory requirements.
2.6 The copyright in all drawings, descriptions
and other information supplied by or at the discretion of
AEC shall remain the property of AEC.
3.1 The price
payable and date of payment shall be the price and date of
payment quoted in the Order Acceptance. Prices are net, ex
works (as defined by Incoterms 2000) and exclude carriage
and delivery charges. VAT will be charged in addition at the
rate current at delivery. AEC reserves the right, by giving
notice to the Customer, to adjust the price to reflect any
variations in the price of materials, wages, transportation
costs, and exchange rates between the date of Order Acceptance
and the delivery date.
3.2 Time for
payment of the price shall be of the essence of the Contract.
No payment shall be deemed to have been received until AEC
has received cleared funds.
3.3 If the
Customer fails to make payment on the due date, then without
prejudice to any other rights or remedy available to AEC,
AEC shall be entitled to charge interest on the sum outstanding
at the rate of 8% above the base lending rate from time to
time of [Barclays Bank Plc] accruing on a daily basis until
payment is made, whether before or after judgement.
3.4 Payment
shall be made in full without any deduction by way of set-off,
counterclaim, discount, abatement or otherwise. This applies
irrespective of whether the Customer’s counterclaim
arises from the same Contract or otherwise.
3.5 In the
case of late payment by the Customer, AEC shall be entitled
to postpone delivery of all orders under the same Contract
and/or other Contracts, and to cancel the Contract and/or
other Contracts.
3.6 All payments
payable to AEC under the Contract shall become due immediately
on termination of the Contract notwithstanding any other provision.
4.1 The Goods
shall be at the risk of the Customer from the time of delivery.
4.2 Title in
the Goods shall not pass to the Customer until AEC has received
in full all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to AEC from
the Customer on any Contract.
4.3 Until title in the Goods has passed to
the Customer, the Customer shall hold the Goods on a fiduciary
basis as AEC’s bailee and shall properly store, protect
and insure the Goods. If so requested by AEC, the Customer
shall store the Goods separately from all other goods of the
Customer or any other third party in such a way that they
are clearly identified as AEC’s property.
4.4 Until title
in the Goods has passed to the Customer, the Customer shall
upon request by AEC deliver to AEC such Goods. If the Customer
fails to deliver the Goods, AEC its agents and employees may
enter any premises where the Goods are or may be stored and
repossess the Goods.
5.1 Unless
otherwise agreed in writing, delivery shall be effected ex
AEC's works (as defined by Incoterms 2000) or, where delivery
is direct from AEC’s suppliers), ex AEC supplier's works.
5.2 Any date
specified by AEC for delivery of the Goods is intended to
be an estimate only and time for delivery shall not be of
the essence.
5.3 AEC shall
not be liable to the Customer for any direct, indirect or
consequential loss (all three of which terms include without
limitation, loss of profits, loss or orders, loss of production,
loss of business, depletion of goodwill and similar losses,
cost, damages, charges or expenses caused directly or indirectly
by any delay in the delivery of the Goods, nor shall any delay
entitle the Customer to terminate or rescind the Contract
unless any such delay exceeds [90 days].
5.4 If for
any reason the Customer failed to accept delivery of any of
the Goods when they are ready for delivery, or the Company
is unable to deliver the Goods in time because the Customer
has not provided appropriate instructions¸ documents,
licenses or authorisations:
(a) risk in the Goods shall
pass to the Customer (including loss of damage cause by AEC’s
negligence);
(b) the Goods shall be deemed
to have been delivered;
(c) AEC may store all the Goods
until delivery, whereupon the Customer shall be liable for
all related costs and expenses (including without limitation,
storage and insurance).
5.5 The Customer
shall be responsible for all unloading, storage and handling
of Goods at the time of delivery.
5.6 AEC shall
not be liable for any non-delivery of Goods unless the Customer
gives written notice to AEC of non-delivery within (10) days
from the date when the Goods in the ordinary course of events
would have been received.
5.7 Any liability
of AEC for non-delivery of the Goods shall be limited to the
replacement of the Goods within a reasonable time or issuing
a credit note against any invoice raised for such Goods to
the Customer.
6.1 AEC warrants
that (subject to the other provisions of these Conditions)
upon delivery and for period of [12] months from the date
of delivery, the Goods shall be of satisfactory quality within
the meaning of the Sale of Goods Act 1979.
6.2 AEC shall
not be liable for a breach of the warranty in clause 6.1 unless:
(a) the Customer gives written
notice of the defect to AEC, and, if the defect is as a result
of damage in transit to the carrier, within 7 days of the
time when the Customer discovers or ought to have discovered
the defect; and
(b) AEC is given a reasonable
opportunity after receiving the notice of examining such Goods
and the Customer (if asked to do so by AEC) returns such Goods
to AEC's place of business at AEC's cost for the examination
to take place there.
6.3 AEC shall
not be liable for a breach of the warranty in clause 6.1 if:
(a) the Customer makes any further
use of such Goods after giving such notice; or
(b) the defect arises because
the Customer failed to follow AEC's oral or written instructions
as to the storage, installation, commissioning, use or maintenance
of the Goods or (if there are none) good trade practice; or
(c) the Customer alters or repairs
such Goods without the written consent of AEC.
6.4 Subject
to clause 6.2 and clause 6.3, if any of the Goods do not conform
with the warranty in clause 6.1 AEC shall at its option repair
or replace such Goods (or the defective part) or refund the
price of such Goods at the pro rata Contract rate provided
that, if AEC so requests, the Customer shall, at AEC's expense,
return the Goods or the part of such Goods which is defective
to AEC.
6.5 If AEC
complies with clause 6.4 it shall have no further liability
for a breach of the warranty in clause 6.1 in respect of such
Goods.
6.6 Any Goods
replaced shall belong to AEC and any repaired or replacement
Goods shall be guaranteed on these terms for the unexpired
portion of the [12] month period.
7. Limitation of Liability
7.1 The following
provisions set out the entire financial ability of AEC to
the Customer (including any liability for the acts, omissions
(negligent or otherwise) of its employees, agents and sub-contractors)
in respect of:
(a) any breach of these conditions;
(b) any tortious acts or omissions
for which AEC is liable; or
(c) any action arising out of
misrepresentation (save in the case of fraudulent misrepresentation).
7.2 Except
in respect of death or personal injury caused by AEC’s
negligence, AEC’s total liability to the Customer in
contract, tort (including negligence or breach of statutory
duty), misrepresentation, restitution or otherwise, arising
out of or in connection with the performance or contemplated
performance of the Contract or otherwise of the subject matter
hereof shall not exceed the Contract price.
7.3 AEC shall
not be liable to the Customer for any indirect, special or
consequential loss or damages, costs or expenses arising out
of or in connection with the Contract.
7.4 AEC shall
not in any event be liable to the Customer for any loss of
profits, loss of orders, loss of production, loss of business
or depletion of goodwill however so arising out of or in connection
with the Contract.
7.5 All warranties,
conditions and other terms implied by statute or common law
are to be the fullest extent permitted by law, excluded from
the Contract.
8.1 Either
party shall be entitled to terminate this Contract immediately
if the other:
(a) commits a material breach, which if remediable, has not
been remedied within fourteen (14) days of being given notice
of the breach by the other party;
(b) has a receiver or administrative
receiver (or the equivalent in any relevant jurisdiction)
appointed over it or any part of its undertaking or assets
or passes a resolution for winding up (otherwise than for
the purposes of a bona fide scheme of solvent amalgamation
or reconstruction) or a Court of a competent jurisdiction
makes an Order to such an effect or it becomes subject to
an administration order or enters into any voluntary arrangement
with its creditors or fails or becomes unable to pay its debts
as they fall due; or
(c) ceases or thereafter to cease carrying on in business.
9.1 AEC shall
not be liable for any failure to deliver or any other failure
to comply with any contractual obligation or delay in the
performance of any of its obligations due to any cause beyond
its reasonable control including but not limited to the late
performance or non-performance or breach of contract by AEC'
sub-suppliers, acts of God or a public enemy, judicial action,
shortage of materials, breakdowns in computer facilities,
telecommunication delays or malfunctions, fire, flood, war,
hostilities, riot, strike, lockouts, export and import restrictions,
bad weather conditions, man power or energy supplies or breakdown
of machines or any other cause beyond the reasonable control
of AEC.
9.2 AEC shall
notify the Customer within a reasonable time of the force
majeure event beginning of the nature and extent of the circumstances
in question. If the circumstances are still continuing 3 months
from and including the date AEC notified the Customer of the
force majeure event, then either party may give written notice
to the other cancelling the Contract. The notice must be received
whilst the circumstances are still continuing.
No variation or addition to
the Contract shall be effective unless in writing and signed
by or on behalf of both parties.
11. Severability
If any provision of the Contract
is invalid, void, illegal or unenforceable, the validity,
existence, legality and enforceability of the remaining provisions
will not be affected, prejudiced or impaired.
No term of the Contract shall
be enforceable by a third party being any person other than
the parties and their permitted successors and assigns.
Any waiver by either party of
any breach of, or any default under, any provision of the
Contract by either party shall not be deemed a waiver of any
subsequent breach or default and shall not affect the other
terms of the Contract.
14.1 Any notice
given under the Contract shall be in writing and may be served
personally during the course of a business day or may be sent
to the other party by registered or recorded delivery or by
facsimile transmission (confirmed by post).
14.2 A notice
shall be deemed to have been served:
(a) if it was served in person,
at the time of service;
(b) if it was served by post, 24 hours after it was posted;
and
(c) if it was served by facsimile transmission, at the time
of transmission if sent during the course of a business day
and otherwise on the next following business day.
14.3 Each party's
address for the service of notice shall be its address set
out in the Order Acceptance or such other address as it specifies
by notice to the other.
15. Venue and Governing
Law
Any dispute between AEC and
the Customer must be settled in accordance with English law
and all actions arising therefrom shall be brought in the
English Courts and the Customer submits to the exclusive jurisdiction
of the English Courts provided that AEC may at its discretion
elect to bring an action against the Customer in any territory
in which the Customer resides or carries on business.
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