Systems Limited – E2S Warning Signals
Company registration number: 2763350
VAT registration number: GB578685665
1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Buyer: the person, firm or company who purchases the Goods from the Company.
Company: European Safety Systems Limited
Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these conditions.
Delivery Point: the place where delivery of the Goods is to take place under condition 4.
Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
Intellectual Property Rights: All intellectual property rights whatsoever vested in the Company whether registered or not and to include, but not be limited to, design rights, patents, trade marks, copyright, trade secrets, database rights and any other form of intellectual
property right obtained by common law.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any
purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed on, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These conditions apply to all the Company’s sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing, and signed by a director of
the Company. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.
2.6 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall come into existence until the Company dispatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.1 The Company reserves the right to accept orders communicated by facsimile or e-mail, however, such orders should always be confirmed in writing the same day by the buyer and marked ‘confirmation’. Any orders not so marked will be treated as fresh orders and the buyer shall be responsible for the consequences of any resultant duplication.
3.2 The Company reserves the right to refuse any order or offer of an order.
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Company’s place of business.
4.2 The Buyer shall take delivery of the Goods within 14 days of the Company giving it notice that the Goods are ready for delivery.
4.3 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.4 Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss (all. three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 90 days.
4.5 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
(a) risk in the Goods shall pass to the Buyer;
(b) the Goods shall be deemed to have been delivered; and
(c) the Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including,
without limitation, storage and insurance).
4.6 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
4.7 No cancellation of an order shall be effective unless in writing and until accepted in writing by a Director of the Company. The Company reserves the right to refuse to accept any cancellation of an order and in particular no cancellation will be accepted on orders for goods with special requirements or not normally stocked by the Company if the manufacture or obtaining by the Company of such goods is in process or has been completed. The Company reserves the right to levy a cancellation charge of 25% on standard products and 80% on products with special requirements or those not normally stocked.
5.1 If the Customer fails or refuses to take delivery of goods on the date laid down in the contract he shall be liable to the Company for any losses occasioned by such a failure or refusal and for any charge thereby incurred by the Company and/or a reasonable charge by the Company for the care and custody of the goods whether he has been specifically requested to take delivery of the goods or not.
5.2 The Company reserves the right to terminate any order or suspend delivery where the customer is in default or becomes insolvent. In such circumstances the Buyer will also lose any right to possession of the goods.
5.3 The quantity of any consignment of Goods as recorded by the Company upon dispatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.4 The Company shall not be liable for any non-delivery of Goods unless the Buyer gives written notice to any carrier and at the same time the Company of the non-delivery within 21 days of the despatch date on the
5.5 In the event of partial loss or damage the buyer must;
Within 3 days of the delivery give notice in writing to any carrier and at the
same time notify the Company in writing; and
Within 7 days make a claim against any carrier or accept any special arrangements which the Company may be able to make on the Buyer’s behalf.
5.6 Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
(a) the Goods; and
(b) all other sums which are or which become due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remainreadily identifiable as the Company’s property;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
6.4 The Buyer may resell the Goods before ownership has passed and before full payment has been made solely on the following conditions:
(a) any sale shall be effected in the ordinary course of the Buyer’s business at full market value; and
(b) any such sale shall be a sale of the Company’s property with the Buyer acting as agent for the Company, the Buyer shall be accountable to the Company as agent and trustee for all monies received as a result of the
6.5 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.6 The Buyer grants the Company, 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 Buyer’s right to
possession has terminated, to recover them.
6.7 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer’s right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold
by the Company to the Buyer in the order in which they were invoiced to the Buyer.
6.8 On termination of the Contract, howsoever caused, the Company’s (but not the Buyer’s) rights contained in this condition 6 shall remain in effect.
7.1 All prices are subject to revision or withdrawal without notice.
7.2 All prices in respect of orders for forward delivery are subject to the Company’s right to vary them.
7.3 All prices are quoted ex-works unless otherwise agreed. Carriage and packing will be charged.
7.4 All goods will be charged at prices ruling at date of dispatch unless otherwise agreed in writing by the Company and all orders are accepted by the Company on this understanding.
7.5 All prices are subject to VAT at the appropriate rate.
7.6 All orders will be subject to a Minimum Order Charge as specified in the current published price list. Carriage and packing will be charged additionally where appropriate.
7.7 The Company reserves the right to decide method of dispatch, unless the Purchaser specifies a dispatch medium, additional costs arising from special delivery instructions are borne by the buyer.
7.8 Prices are for the quantity stated in the price list and any reduction may affect the price charged.
8.1 Subject to condition 8.4, payment of the price for the Goods is due in pounds sterling.
8.2 Time for payment shall be 30 days from date of invoice. The Company reserves the right to require payment in full on receipt of an order.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds.
8.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
8.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an
amount equal to such deduction to be paid by the Company to the Buyer.
8.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at a compounding interest rate of 2% permonth on any overdue accounts. The Company reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
9. QUALITY / GUARANTEE
9.1 All goods manufactured by the Company are guaranteed to the buyer only to the extent hereinafter mentioned against defects arising from faulty materials or workmanship, subject to the goods not having suffered
maltreatment, inattention, modification or interference. Warranty is only applicable to those products that have been installed for use in applications and in environmental conditions deemed suitable and as specified by the Company. Excluded from the warranty are light source components such as Xenon tubes, filament or halogen lamps and light emitting diodes.
The Company’s liability under this guarantee is limited to repairing or replacing any part or parts found to be defective within 10 years after the date of invoice. The decision as to whether to repair or replace shall reside solely with the Company. A returns order reference must be obtained from the Company prior to returning any goods.
9.2 If goods not of the Company’s manufacture are ordered, the guarantee, if any, of the manufacturer of such goods is effective. Specifically:
(a) A151 – 2 years
(b) E2S22D, E2S28D, IS-pB1, K-SML05/10/15 – 1
9.3 Where the buyer is buying in the course of business 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.
9.4 The Company shall not be liable for a breach of the guarantee in condition 9.1 unless:
(a) the Buyer gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit to the carrier, within 7 days of delivery; and
(b) the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Buyer’s cost for the examination to take place there.
9.5 The Company shall not be liable for a breach of the guarantee in condition 9.1 if:
(a) the Buyer makes any further use of such Goods after giving such notice; or
(b) the defect arises because the Buyer failed to follow the Company’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 Buyer alters or repairs such Goods without the written consent of the Company.
10. LIMITATION OF LIABILITY
10.1 Subject to condition 4, condition 5 and condition 9, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these conditions;
(b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
10.2 Nothing in these conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
10.3 Subject to condition 10.1 and condition 10.2:
(a) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
(b) the Company shall not be liable to the Buyer for any;
(i) pure economic loss; or
(ii) loss of profit; or
(iii) loss of business; or
(iv) depletion of goodwill or otherwise; or
(v) claims for consequential compensation
whatsoever (howsoever caused) which arise out of or in connection with the
(vi) indirect losses.
11.1 The Company may assign the Contract or any part of it to any person, firm or company.
11.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of one of the Directors of the Company.
12. FORCE MAJEURE
Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
13.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
13.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
13.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
13.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
13.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
13.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
13.7 The policy of the Company is one of continued research and development and we reserve the right to amend any equipment specification, colour, manufacturing materials or method without prior notice.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 All Intellectual Property Rights in the Goods are the property of the Company. The Buyer does not own, nor will the Buyer acquire, any interest in the Intellectual Property Rights in the Goods whether under these Terms and Conditions or otherwise.
15.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 15.2.
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this agreement Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 15.2; and
16. DATA PROTECTION
16.1 The processing of personal data is governed by the Data Protection Act 1998, under which the Company is registered as a data controller. Any personal data you provide will be held securely and in accordance with the Data Protection Act 1998. We will use your personal data for the purpose(s) in relation to which you have provided it. We may however need to disclose personal data to a third party so that they can provide the service you have requested. We may additionally need to disclose information where there is a legitimate reason for disclosure (such as a court order) but we will ensure that we always comply with the Data Protection Act. Any information about you that we pass to a third party will be held securely by that party, in accordance with the Data Protection Act 1998, and used only to provide services or information you have requested. As a data subject you have the right to ask for a copy of personal data about you and to ask for inaccuracies to be corrected. Queries about compliance with the Data Protection Act should be addressed to: The Managing Director, E2S, Impress House, Mansell Road, Acton, W3 7QH.
17.1. All communications between the parties about the Contract shall be in writing, in the English language, and delivered by hand or sent by pre-paid first class post or sent by fax:
(a) (in case of communications to the Company) to its registered office or such changed address as shall be notified to the Buyer by the Company; or
(b) (in the case of the communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.
17.2 Communications shall be deemed to have been received:
(a) if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
delivered by hand, on the day of delivery; or
(c) if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
17.3 Communications addressed to the Company shall be marked for the attention of a director of the Company.
18. GOVERNING LAW AND JURISDICTION
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.