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Terms & Conditions
Interpretation
In these Conditions, the following expressions shall have the following meanings:
(a) “the Seller” – Beta Power Engineering Ltd
(b) “the Purchaser” - the person, firm or company which accepts the Seller’s quotation or otherwise enters into a contract with the Seller.
(c) “the Price” - the sum stated in the contract between the Seller and the Purchaser as the amount payable to the Seller for the goods and/or services to be provided by the Seller to the Purchaser.
1. General
TThe seller’s website is an offer to treat only. Any contract shall consist of the buyer’s order and the seller’s acceptance thereof. Any order accepted by the seller shall be subject to the seller’s conditions of sale and No other conditions shall apply unless expressly agreed in writing by the seller.
2. Force majeure
Neither party accepts any liability to the extent to which the fulfilment of its obligations is prevented, frustrated or impeded as a consequence of any legislation, import or export restriction, strike, lock-out or industrial action of any kind, fire, accident, civil disturbance, weather, Act of God, order or requisition by any competent authority or any circumstance beyond its control. If by reason of any such circumstance performance within a reasonable time becomes impossible either party shall be entitled to terminate the contract by notice in writing to the other, but without prejudice to claims accrued at the date of termination.
3. Validity and acceptance
(a) Unless previously withdrawn or otherwise stated, every quotation is valid for acceptance within 30 days from the date thereof and is only capable of acceptance subject to these Conditions and to confirmation by way of the Seller’s order acknowledgment at the time of such acceptance.
(b) Acceptance of the quotation must be accompanied by sufficient information to enable the Seller to proceed, otherwise the Seller may amend the Price and other terms to cover any increase in cost or other change in circumstances which has taken place after acceptance.
4. Limits of contract
Every quotation includes only such goods, accessories and work as are specified therein. Site work is not included unless specifically agreed in writing and is subject to the Seller’s Conditions for Technical Personnel on Home and Overseas Contracts for Service, Installation and Commissioning (“the Service Conditions”) which form part of the contract (where applicable) and are available from the Seller on request. In the event of any conflict between these Conditions and the Service Conditions these Conditions shall prevail.
5. Delivery
(a) Unless otherwise stated in the quotation, prices are for delivery ex United Kingdom warehouse. Subject and without prejudice to Condition 2, in the case of imported goods liability is not accepted for delays in delivery due to events occurring outside the UK which are beyond the Seller’s reasonable control.
(b) Where delivery is to a site, the Purchaser shall provide suitable access with a safe and easy approach, lifting tackle for unloading, skilled labour and all other facilities required for getting the goods under cover ready for erection or use.
(c) All times quoted for delivery are to be treated as estimates only unless expressly referred to as “firm” in the Seller’s quotation.
(d) If a delivery time is “firm” and the Seller fails to deliver the goods by such time for reasons other than matters beyond its control (including but not limited to any act or default of the Purchaser), the Purchaser may by giving the Seller notice in writing within a reasonable time (and not later than 30 days after delivery) claim a reduction in the Price equal to ½% of the price properly attributable to such part of the goods as cannot in consequence of such failure be put to the use intended for each complete week of delay but not exceeding 7.5% thereof.
(e) If any part of the goods, in respect of which the Purchaser has become entitled to claim the maximum reduction under paragraph (d) above, remains undelivered, the Purchaser may give notice fixing a final time for delivery which shall be reasonable taking into account the delay which has already occurred. If delivery is not effected by that time, the Purchaser may cancel the contract forthwith by notice in writing and the Purchaser may recover any loss he has suffered up to an aggregate limit, including any amount claimed under paragraph (d) above, of 10% of the price properly attributable to such part of the goods which as a consequence of the Seller’s failure could not be put to its intended use. Except as provided in this Condition, paragraphs (d) and (e), the Seller shall not be liable for damages of any kind suffered by the Purchaser due to delay.
(f) Where a quoted delivery time is not “firm” and the Seller fails to deliver by such time for reasons other than those specified in paragraph (d) above, the Purchaser may give the Seller notice in writing fixing a time for delivery which shall be reasonable taking into account the delay which has already occurred, and if the Seller shall fall to deliver within such time paragraphs (d) and (e) above shall apply as if a “firm” delivery time had been originally quoted.
6. Delay in taking delivery
If the Purchaser fails to take delivery for reasons other than force majeure as defined in Condition 2 above, any resulting expenses including but not limited to demurrage, storage, double handling, insurance during storage etc. will be charged to the Purchaser. Without prejudice to the foregoing, the Seller may at any time after the goods are ready for dispatch give the Purchaser notice requiring him to accept delivery within a reasonable time. If the Purchaser for any reason fails to do so, the Seller may by notice in writing to the Purchaser, terminate the contract in respect of such part of the goods as remains undelivered by reason of the Purchaser’s failure and recover any loss suffered by the Seller up to a maximum of such part of the Price as is properly attributable to the undelivered goods.
7. Extra cost
(a) In the event of any suspension or delay to the work by reason of any act or default of the Purchaser including but not limited to misleading or insufficient instructions, the Price shall be increased to cover any extra costs or expenses incurred by the Seller as a result.
(b) Duties or taxes on manufactured goods wherever imposed are not included in the Price unless expressly stipulated in the Seller’s quotation but if included are always based upon the tariffs in force on the date of the quotation and the Price may be adjusted by a sum corresponding to any increase or decrease therein.
(c) Where imported goods have been quoted by the Seller at prices based upon then current rates of foreign exchange such prices may be adjusted by the Seller to reflect changes in rates between quotation and payment. If the Seller so requires, payment for such goods is to be made in the currency of the country of origin.
8. Standards and technical information
(a) Unless otherwise specified in the Seller’s quotation (or order acknowledgment):-
(i) imported goods will be to the standard of the country of origin
(ii) the goods are supplied with Beta Power Engineering Ltd standard documentation and instruction manuals as appropriate. Additional documentation may be provided at extra charge.
(iii) the goods are supplied with Beta Power Engineering Ltd standard finish, paint standard and packing. Alternative finishes, colours and special packing may be supplied at extra charge.
(iv) any tests to which the goods may be subjected are Beta Power Engineering Ltds standard tests. Any additional tests requested by the Purchaser may be carried out at extra charge.
(b) Drawings, illustrations, specifications and quotations provided by the Seller and any information contained therein are confidential and remain the property of the Seller. They must not be communicated to a third party without the Seller’s previous written permission. All dimensions weights or measurements appearing in such documents are approximate only and not part of any contract.
(c) The Seller operates a quality system designed to meet the requirements of BS5750 Part 1 (ISO9001) but does not guarantee that all products and services supplied are sourced from companies registered to BS5750.
9. Performance
(a) Any performance figures or standards given by the Seller are based on its experience and are such as the Seller expects to obtain on tests. However, it is for the Purchaser to satisfy itself that the goods or the performance figures are suitable for their purpose and no liability is accepted in respect of failure to achieve such figures unless the Seller has specifically stated in its quotation that they are guaranteed. In the event of failure to obtain such guaranteed figures after the Seller has been given reasonable time and opportunity to do so, the Purchaser may give notice in writing to cancel the contract and the Seller will refund any sum paid on account of the Price but without interest or the Purchaser may elect to retain and pay for the goods subject to a reduction in respect of any loss he has suffered as a result limited to 10% of the part of the Price properly attributable to the goods which have failed. Subject as aforesaid, the Seller shall be under no liability whatsoever in respect of failure to obtain performance figures or standards.
(b) Where any statement or recommendation is made by or on behalf of the Seller in any form whether in connection with the supply erection or installation of goods or otherwise such statement is given in good faith and based on the Seller’s experience but no liability of any kind is accepted in relation thereto.
10. Liabilities, accidents, damage and warranty
(a) Subject as hereinafter provided, the Seller’s liabilities in respect of the goods and/or services will be limited in accordance with this Condition.
(b) The Seller undertakes to make good any defect which may appear under normal and proper use during the warranty period which is solely due to faulty design, materials or workmanship provided that the defect is notified to the Seller in writing within ten working days after it is discovered and that the defective parts are promptly returned to the Seller’s premises all charges prepaid. The repaired or new parts will be delivered free in the UK, or in the case of goods for export, FOB port of shipment. Defective parts so replaced remain the Seller’s property. Unless otherwise stated in the quotation or order confirmation, the warranty period is twelve months from the date of delivery, or if delivery is delayed for reasons beyond the Seller’s control, from the date the goods are ready for dispatch. All liability on the Seller’s part ceases at the end of the warranty period. This warranty shall not apply if and to the extent that repair or parts replacement is required as a result of causes other than normal and proper use, including without limitation, accident, normal wear and tear, failure or fluctuations of electric power, air conditioning, humidity control, other adverse environmental conditions, maintenance by third parties not approved by the Seller, combination of the goods or equipment with other equipment or components not approved by the Seller or other causes beyond the Seller’s reasonable control.
(c) Where at the Purchaser’s request, repairs are carried out otherwise than by return of the defective part, the Seller shall be entitled to charge engineer’s time spent (other than in respect of actual repair work) at the Seller’s prevailing rates plus any expenses reasonably incurred. Repairs or modifications carried out by third parties without the Seller’s authority will invalidate the warranty.
(d) The Seller shall indemnify the Purchaser against claims in respect of damage to property and of injury to or the death of any person to the extent resulting from the Seller’s negligence or that of its employees acting in the course of their employment in relation to the manufacture, supply or erection of the goods and/or provision of any services, provided that the liability under the indemnity in respect of physical damage to property shall not exceed the sum of £10 million in relation to any one event or series of events arising from the same cause.
(e) The Seller warrants that it will maintain insurance against its liability under paragraph (d) above, the terms of such policy to include a provision to indemnify the Purchaser in respect of such claims made against it.
(f) In the event of any claim being made against the Purchaser arising out of the matters referred to in paragraph (d) and in respect of which it appears that the Seller may be liable under that paragraph the Seller shall be promptly notified thereof and may at its own expense conduct all negotiations for the settlement of the same and any litigation that may arise in relation thereto. The Purchaser shall not make any admission which might be prejudicial thereto and shall at the request of the Seller provide all available assistance in connection with any investigations, negotiations or litigation.
(g) The warranty in paragraph (b) above is in lieu of all conditions, warranties, or other terms however arising or to be implied by statute or otherwise as to description, quality, fitness for purpose, standards of skill and care or otherwise, which are hereby excluded.
(h) In no circumstance shall the liability (if any) of the Seller to the Purchaser under Conditions 5 and 9 exceed in the aggregate 15% of the Price.
(i) Subject and without prejudice to the express indemnities in paragraph (d) above and its liability for damages under Condition 5 & 9 (if any) the Seller accepts no liability for loss or damage of any kind arising directly or indirectly from the supply, erection or installation of the goods or any representation not made fraudulently whether in contract, tort including but not limited to negligence, or otherwise (including without prejudice to the generality of the foregoing any loss of profit, loss or use or production or any other economic, indirect or consequential loss or damage).
11. Payment, title and risk
((a) Unless otherwise expressly agreed the Price is strictly net and exclusive of VAT at the rate applicable on date of dispatch and payment shall be due within 30 days of invoice for account customers. Online orders placed for non account holders to be settled by credit/debit card or cheque. (b) Without prejudice to the Seller’s rights under Condition 6 if due to the Purchaser’s default the Seller is unable to dispatch the goods an invoice will be submitted when the goods are ready for dispatch and payment will become due accordingly.
(c) Where delivery is to be made by instalments, payment for each instalment shall be made in the manner as if each instalment constituted a separate contract.
(d) Interest at 4% above LIBOR (London Inter Bank Offer Rate) will be charged from the due date for payment until actual receipt of payment.
(e) The risk shall pass to the Purchaser on delivery unless otherwise specified by the Seller in writing.
(f) The ownership of the goods shall remain with the Seller, who reserves the right to dispose of them until the Seller has received payment in full for the goods, and all other sums due from the Purchaser on any other account. Pending such payment the Purchaser undertakes to mark or otherwise clearly identify the goods as the Seller’s and store them separately from its own, and the Seller may enter the Purchaser’s premises to inspect the goods and ensure that they are so marked or clearly identified and the Seller may enter the Purchaser’s premises to inspect the goods and ensure that they are so marked or clearly identified.
(g) The Seller reserves the right to suspend deliveries of goods the subject of contracts with the Purchaser and to decline to accept orders if any queries are unresolved after one month from the date they were first raised. (h) If payment is overdue in whole or in part, the Seller, its employees or agents, may (without prejudice to any other rights) recover or resell the goods or any part of them and may enter upon the Purchaser’s premises for that purpose.
(i) Payment in full shall become due immediately upon the commencement of any act or proceeding in which the Purchaser’s solvency is involved. The Purchaser shall not in any circumstances be entitled to deduct retain or set off the amount of any claim however arising against the Seller whether or not for a liquidated sum.
12. Claims, queries and returns
(a) No claims in respect of shortages, or discrepancies in or damage to goods will be accepted unless notified to the Seller in writing within 7 working days of the date of delivery or within 14 days of the date of the Seller’s invoice in the event of a claim for non delivery.
(b) The Seller shall have no liability in respect of damage or shortages caused by the acts or omissions of the Purchaser or of others or by causes beyond the Seller’s control.
(c) No claim in respect of any invoice as to inaccuracies in price, discount, terms of payment or any other commercial terms will be accepted unless notified to the Seller in writing within 14 days of the Seller’s invoice.
(d) No claim by the Purchaser that it has not received an invoice will be accepted unless notified to the Seller in writing within 7 days from the date of the first statement of account from the Seller identifying such invoice.
(e) In any case referred to in paragraphs (a), (c) or (d) of this Condition where no claim has been notified within the relevant period the Purchaser will be deemed to have accepted and be liable for the price of the goods in respect of which, but for such provision, a claim might have been made.
13. Suspension of deliveries
(a) The Seller reserves the right forthwith to cease or suspend deliveries to the Purchaser without liability when :
(i) the Purchaser’s account is overdue
(ii) in the Seller’s reasonable opinion any event has occurred or circumstance arisen which gives rise to doubt as to the continued creditworthiness of the Purchaser.
(b) subject and without prejudice to Conditions 11 (i) and 13(a) if the Purchaser, being an individual, shall become bankrupt or become subject to a receiving order in bankruptcy or being a corporation shall:
(i) commence to be wound up (except for the purpose of solvent amalgamation or reconstruction)
(ii) make any composition or arrangement with its creditors
(iii) become subject to an administration order
(iv) have a receiver appointed of its assets or any of them, then and in any such case, the Seller may (without being responsible for loss) terminate the contract by notice in writing to the Purchaser and recover any loss or damage it has suffered as a result of such termination, limited to the Price, and the Seller may retain any sums paid by the Purchaser under the contract in payment or part payment of such loss or damage.
14. Software
The following provisions shall apply in connection with the supply and use of software.
(a) “Software” shall mean and include computer programs, firmware and software whether forming part of the goods or delivered with them or not and all user documentation provided by the Seller.
(b) The Purchaser is granted a non-exclusive right to use the Software. This right is limited, where the Software is supplied as part of or in conjunction with the goods, to the Purchaser’s use:
(i) for normal operation of the goods and
(ii) during their existence or until terminated by the Seller by reason of breach by the Purchaser of any of the provisions of this Condition 14.
(c) Title to the Software and parts thereof licensed hereunder and all rights therein including patents, copyrights, trade marks and trade secrets applicable thereto shall remain vested in the Seller. The Purchaser may not copy or reproduce the Software in whole or in part.
(d) The Purchaser may not disassemble, reverse compile, translate or decipher the Software in whole or in part.
(e) The Software may not in whole or in part be disclosed by the Purchaser to any third party.
(f) The Seller warrants that any diskette or medium on which the Software is supplied will be free from defects in materials and workmanship under normal use for a period of ninety days after installation but no longer than one hundred and twenty days from delivery (“the relevant period”). If a defect shall occur during the relevant period, the diskette or medium may be returned by the Purchaser to the Seller carriage paid and the Seller will replace it free of charge. The Seller further warrants that during the relevant period the Software will perform substantially in accordance with its accompanying documentation (provided that it is properly used on or in conjunction with the goods or products approved by the Seller) and that such documentation correctly describes the operation of the software in all material respects. If the Seller is notified of significant errors during the relevant period it will correct any such demonstrable errors in the Software or its documentation within a reasonable time or (at its option) provide or authorise a refund of the price of the software (against return of the Software and its documentation).
(g) The Seller performs regular checks on its software for computer viruses (and other similar programs) but cannot guarantee that it is completely free from them and accordingly does not accept any liability for loss or damage caused by them. The Seller recommends that the Purchaser checks the Seller’s software for computer viruses before using it.
(h) The foregoing warranties and undertakings represent exclusive remedies and are in lieu of all other warranties expressed or implied, whether by statute or otherwise, and without prejudice to the generality of the foregoing, no warranty is given that the Software will be suitable for any particular requirement of the Purchaser or that its operation will be uninterrupted or error free.
(i) Subject and without prejudice to the foregoing provisions of this Condition 14, the provisions of paragraphs (b), (d), and (e) of Condition 10 shall, mutatis mutandis, apply to the supply and use of Software
15. Export restrictions and non authorised uses
(a) Unless otherwise agreed in writing by the Seller, all goods and services are supplied on the strict condition that :
(i) they are solely for civil use
(ii) they are not to be supplied to any country whether directly or indirectly or for any application where such supply or application is prohibited by any law or regulation binding or effective there, in the United Kingdom or the country of manufacture.
(iii) they will not in any way be installed used or applied in or in connection with the operation of any nuclear facilities such as but not limited to nuclear
power plants, nuclear fuel manufacturing plants, uranium enrichment plants, spent nuclear fuel stores or research reactors. (b) The Seller shall have no obligation under this contract to supply the goods and/or the services until the Purchaser has, where requested by the Seller, supplied to it an End-User certificate in terms satisfactory to the Seller signed by a duly authorised representative of the Purchaser confirming the matters set out in paragraphs
(a) (i) to (iii) above.
(c) The End-User Certificate referred to in paragraph (b) above shall form part of the contract and breach by the Purchaser of any of the Conditions in paragraphs (a) (i)
to (iii) above or in the End-User Certificate shall entitle the Seller :
(i) without being responsible for loss to refuse further performance under the contract
(ii) to recover from the Purchaser any loss or damage it has suffered as a result of the Purchaser’s breach limited to the Price and the Seller may retain in satisfaction or part satisfaction of the Purchaser’s liability under this Condition 15 any sums paid by the Purchaser under the contract.
(d) The Purchaser acknowledges that governmental regulations of more than one country may prevent or restrict the export of the goods to other countries. Further information will be provided on request but the Purchaser agrees to abide by any such regulations which may exist and to indemnify the Seller against any actions costs demands or expenses resulting from any failure by the Purchaser to do so.
(e) Where supply of the goods or services is subject to a requirement to obtain an export and/or import license the Seller shall apply for such license only after all necessary documentation for the application has been provided by the Purchaser who shall furnish such documentation within a reasonable time after acceptance by the Seller of the Purchaser’s order. Any delay in obtaining such license shall suspend delivery dates without liability to either party. If a license is not granted within a reasonable time or is revoked by the appropriate authorities the contract may be cancelled by the Seller without liability for damages of any kind. If such license is not granted or is revoked by reason of the act or default of the Purchaser the Seller may in addition to its right of cancellation recover from the Purchaser any loss or damage it has suffered as if paragraph (c) (ii) above applied.
16. System sales
For the purpose of this contract the word “system” shall mean computer or process hardware and any operating and/or applications software supplied therewith. Where the seller is to supply a system the following provisions shall apply.
(a) it is for the purchaser to define and specify the hardware configuration which will meet its process or other requirements and the seller shall have no responsibility as to environmental conditions at the purchaser’s site (including but not limited to the quality of the electrical supply) nor for any application or other engineering carried out by the purchaser necessary for the installation or operation of the system.
(b) in the absence of an agreed acceptance test for the system, the seller will notify the purchaser in writing when it will conduct its standard acceptance test for the system and successful completion of this test will constitute the purchaser’s factory acceptance of the system and authorise the seller to make delivery. A further acceptance test will be performed by the seller’s qualified personnel, unless specified otherwise, within thirty days of delivery to the purchaser’s site. This acceptance test is designed to verify that all equipment and/or software comprised in the system has arrived in the purchaser’s site complete, without physical damage and ready for the application of power. The seller’s written certificate that the site acceptance test has been satisfactorily concluded will constitute acceptance of the system by the purchaser. If due to the act or default of the purchaser testing is delayed for more than thirty days after delivery to the purchaser’s site the system shall be deemed to have been finally accepted by the purchaser.
17. Indemnity
The purchaser agrees to indemnify and holds the seller harmless for all loss, cost or damage incurred by the seller as a result of the purchaser’s negligence or misuse of the goods supplied by the seller.
18. Waiver
No provision of these conditions shall be considered waived or varied by either party unless confirmed in writing by duly authorised representatives of both parties. No such waiver shall be a waiver of any past or future default, breach or modification of these conditions. The non-enforcement of any of these conditions by either party shall not be construed as a waiver of that party’s other rights and obligations.
19. Legal interpretation
The contract shall in all respects be construed and operate in accordance with english law and is subject to the exclusive jurisdiction of the english courts.
In these Conditions, the following expressions shall have the following meanings:
(a) “the Seller” – Beta Power Engineering Ltd
(b) “the Purchaser” - the person, firm or company which accepts the Seller’s quotation or otherwise enters into a contract with the Seller.
(c) “the Price” - the sum stated in the contract between the Seller and the Purchaser as the amount payable to the Seller for the goods and/or services to be provided by the Seller to the Purchaser.
1. General
TThe seller’s website is an offer to treat only. Any contract shall consist of the buyer’s order and the seller’s acceptance thereof. Any order accepted by the seller shall be subject to the seller’s conditions of sale and No other conditions shall apply unless expressly agreed in writing by the seller.
2. Force majeure
Neither party accepts any liability to the extent to which the fulfilment of its obligations is prevented, frustrated or impeded as a consequence of any legislation, import or export restriction, strike, lock-out or industrial action of any kind, fire, accident, civil disturbance, weather, Act of God, order or requisition by any competent authority or any circumstance beyond its control. If by reason of any such circumstance performance within a reasonable time becomes impossible either party shall be entitled to terminate the contract by notice in writing to the other, but without prejudice to claims accrued at the date of termination.
3. Validity and acceptance
(a) Unless previously withdrawn or otherwise stated, every quotation is valid for acceptance within 30 days from the date thereof and is only capable of acceptance subject to these Conditions and to confirmation by way of the Seller’s order acknowledgment at the time of such acceptance.
(b) Acceptance of the quotation must be accompanied by sufficient information to enable the Seller to proceed, otherwise the Seller may amend the Price and other terms to cover any increase in cost or other change in circumstances which has taken place after acceptance.
4. Limits of contract
Every quotation includes only such goods, accessories and work as are specified therein. Site work is not included unless specifically agreed in writing and is subject to the Seller’s Conditions for Technical Personnel on Home and Overseas Contracts for Service, Installation and Commissioning (“the Service Conditions”) which form part of the contract (where applicable) and are available from the Seller on request. In the event of any conflict between these Conditions and the Service Conditions these Conditions shall prevail.
5. Delivery
(a) Unless otherwise stated in the quotation, prices are for delivery ex United Kingdom warehouse. Subject and without prejudice to Condition 2, in the case of imported goods liability is not accepted for delays in delivery due to events occurring outside the UK which are beyond the Seller’s reasonable control.
(b) Where delivery is to a site, the Purchaser shall provide suitable access with a safe and easy approach, lifting tackle for unloading, skilled labour and all other facilities required for getting the goods under cover ready for erection or use.
(c) All times quoted for delivery are to be treated as estimates only unless expressly referred to as “firm” in the Seller’s quotation.
(d) If a delivery time is “firm” and the Seller fails to deliver the goods by such time for reasons other than matters beyond its control (including but not limited to any act or default of the Purchaser), the Purchaser may by giving the Seller notice in writing within a reasonable time (and not later than 30 days after delivery) claim a reduction in the Price equal to ½% of the price properly attributable to such part of the goods as cannot in consequence of such failure be put to the use intended for each complete week of delay but not exceeding 7.5% thereof.
(e) If any part of the goods, in respect of which the Purchaser has become entitled to claim the maximum reduction under paragraph (d) above, remains undelivered, the Purchaser may give notice fixing a final time for delivery which shall be reasonable taking into account the delay which has already occurred. If delivery is not effected by that time, the Purchaser may cancel the contract forthwith by notice in writing and the Purchaser may recover any loss he has suffered up to an aggregate limit, including any amount claimed under paragraph (d) above, of 10% of the price properly attributable to such part of the goods which as a consequence of the Seller’s failure could not be put to its intended use. Except as provided in this Condition, paragraphs (d) and (e), the Seller shall not be liable for damages of any kind suffered by the Purchaser due to delay.
(f) Where a quoted delivery time is not “firm” and the Seller fails to deliver by such time for reasons other than those specified in paragraph (d) above, the Purchaser may give the Seller notice in writing fixing a time for delivery which shall be reasonable taking into account the delay which has already occurred, and if the Seller shall fall to deliver within such time paragraphs (d) and (e) above shall apply as if a “firm” delivery time had been originally quoted.
6. Delay in taking delivery
If the Purchaser fails to take delivery for reasons other than force majeure as defined in Condition 2 above, any resulting expenses including but not limited to demurrage, storage, double handling, insurance during storage etc. will be charged to the Purchaser. Without prejudice to the foregoing, the Seller may at any time after the goods are ready for dispatch give the Purchaser notice requiring him to accept delivery within a reasonable time. If the Purchaser for any reason fails to do so, the Seller may by notice in writing to the Purchaser, terminate the contract in respect of such part of the goods as remains undelivered by reason of the Purchaser’s failure and recover any loss suffered by the Seller up to a maximum of such part of the Price as is properly attributable to the undelivered goods.
7. Extra cost
(a) In the event of any suspension or delay to the work by reason of any act or default of the Purchaser including but not limited to misleading or insufficient instructions, the Price shall be increased to cover any extra costs or expenses incurred by the Seller as a result.
(b) Duties or taxes on manufactured goods wherever imposed are not included in the Price unless expressly stipulated in the Seller’s quotation but if included are always based upon the tariffs in force on the date of the quotation and the Price may be adjusted by a sum corresponding to any increase or decrease therein.
(c) Where imported goods have been quoted by the Seller at prices based upon then current rates of foreign exchange such prices may be adjusted by the Seller to reflect changes in rates between quotation and payment. If the Seller so requires, payment for such goods is to be made in the currency of the country of origin.
8. Standards and technical information
(a) Unless otherwise specified in the Seller’s quotation (or order acknowledgment):-
(i) imported goods will be to the standard of the country of origin
(ii) the goods are supplied with Beta Power Engineering Ltd standard documentation and instruction manuals as appropriate. Additional documentation may be provided at extra charge.
(iii) the goods are supplied with Beta Power Engineering Ltd standard finish, paint standard and packing. Alternative finishes, colours and special packing may be supplied at extra charge.
(iv) any tests to which the goods may be subjected are Beta Power Engineering Ltds standard tests. Any additional tests requested by the Purchaser may be carried out at extra charge.
(b) Drawings, illustrations, specifications and quotations provided by the Seller and any information contained therein are confidential and remain the property of the Seller. They must not be communicated to a third party without the Seller’s previous written permission. All dimensions weights or measurements appearing in such documents are approximate only and not part of any contract.
(c) The Seller operates a quality system designed to meet the requirements of BS5750 Part 1 (ISO9001) but does not guarantee that all products and services supplied are sourced from companies registered to BS5750.
9. Performance
(a) Any performance figures or standards given by the Seller are based on its experience and are such as the Seller expects to obtain on tests. However, it is for the Purchaser to satisfy itself that the goods or the performance figures are suitable for their purpose and no liability is accepted in respect of failure to achieve such figures unless the Seller has specifically stated in its quotation that they are guaranteed. In the event of failure to obtain such guaranteed figures after the Seller has been given reasonable time and opportunity to do so, the Purchaser may give notice in writing to cancel the contract and the Seller will refund any sum paid on account of the Price but without interest or the Purchaser may elect to retain and pay for the goods subject to a reduction in respect of any loss he has suffered as a result limited to 10% of the part of the Price properly attributable to the goods which have failed. Subject as aforesaid, the Seller shall be under no liability whatsoever in respect of failure to obtain performance figures or standards.
(b) Where any statement or recommendation is made by or on behalf of the Seller in any form whether in connection with the supply erection or installation of goods or otherwise such statement is given in good faith and based on the Seller’s experience but no liability of any kind is accepted in relation thereto.
10. Liabilities, accidents, damage and warranty
(a) Subject as hereinafter provided, the Seller’s liabilities in respect of the goods and/or services will be limited in accordance with this Condition.
(b) The Seller undertakes to make good any defect which may appear under normal and proper use during the warranty period which is solely due to faulty design, materials or workmanship provided that the defect is notified to the Seller in writing within ten working days after it is discovered and that the defective parts are promptly returned to the Seller’s premises all charges prepaid. The repaired or new parts will be delivered free in the UK, or in the case of goods for export, FOB port of shipment. Defective parts so replaced remain the Seller’s property. Unless otherwise stated in the quotation or order confirmation, the warranty period is twelve months from the date of delivery, or if delivery is delayed for reasons beyond the Seller’s control, from the date the goods are ready for dispatch. All liability on the Seller’s part ceases at the end of the warranty period. This warranty shall not apply if and to the extent that repair or parts replacement is required as a result of causes other than normal and proper use, including without limitation, accident, normal wear and tear, failure or fluctuations of electric power, air conditioning, humidity control, other adverse environmental conditions, maintenance by third parties not approved by the Seller, combination of the goods or equipment with other equipment or components not approved by the Seller or other causes beyond the Seller’s reasonable control.
(c) Where at the Purchaser’s request, repairs are carried out otherwise than by return of the defective part, the Seller shall be entitled to charge engineer’s time spent (other than in respect of actual repair work) at the Seller’s prevailing rates plus any expenses reasonably incurred. Repairs or modifications carried out by third parties without the Seller’s authority will invalidate the warranty.
(d) The Seller shall indemnify the Purchaser against claims in respect of damage to property and of injury to or the death of any person to the extent resulting from the Seller’s negligence or that of its employees acting in the course of their employment in relation to the manufacture, supply or erection of the goods and/or provision of any services, provided that the liability under the indemnity in respect of physical damage to property shall not exceed the sum of £10 million in relation to any one event or series of events arising from the same cause.
(e) The Seller warrants that it will maintain insurance against its liability under paragraph (d) above, the terms of such policy to include a provision to indemnify the Purchaser in respect of such claims made against it.
(f) In the event of any claim being made against the Purchaser arising out of the matters referred to in paragraph (d) and in respect of which it appears that the Seller may be liable under that paragraph the Seller shall be promptly notified thereof and may at its own expense conduct all negotiations for the settlement of the same and any litigation that may arise in relation thereto. The Purchaser shall not make any admission which might be prejudicial thereto and shall at the request of the Seller provide all available assistance in connection with any investigations, negotiations or litigation.
(g) The warranty in paragraph (b) above is in lieu of all conditions, warranties, or other terms however arising or to be implied by statute or otherwise as to description, quality, fitness for purpose, standards of skill and care or otherwise, which are hereby excluded.
(h) In no circumstance shall the liability (if any) of the Seller to the Purchaser under Conditions 5 and 9 exceed in the aggregate 15% of the Price.
(i) Subject and without prejudice to the express indemnities in paragraph (d) above and its liability for damages under Condition 5 & 9 (if any) the Seller accepts no liability for loss or damage of any kind arising directly or indirectly from the supply, erection or installation of the goods or any representation not made fraudulently whether in contract, tort including but not limited to negligence, or otherwise (including without prejudice to the generality of the foregoing any loss of profit, loss or use or production or any other economic, indirect or consequential loss or damage).
11. Payment, title and risk
((a) Unless otherwise expressly agreed the Price is strictly net and exclusive of VAT at the rate applicable on date of dispatch and payment shall be due within 30 days of invoice for account customers. Online orders placed for non account holders to be settled by credit/debit card or cheque. (b) Without prejudice to the Seller’s rights under Condition 6 if due to the Purchaser’s default the Seller is unable to dispatch the goods an invoice will be submitted when the goods are ready for dispatch and payment will become due accordingly.
(c) Where delivery is to be made by instalments, payment for each instalment shall be made in the manner as if each instalment constituted a separate contract.
(d) Interest at 4% above LIBOR (London Inter Bank Offer Rate) will be charged from the due date for payment until actual receipt of payment.
(e) The risk shall pass to the Purchaser on delivery unless otherwise specified by the Seller in writing.
(f) The ownership of the goods shall remain with the Seller, who reserves the right to dispose of them until the Seller has received payment in full for the goods, and all other sums due from the Purchaser on any other account. Pending such payment the Purchaser undertakes to mark or otherwise clearly identify the goods as the Seller’s and store them separately from its own, and the Seller may enter the Purchaser’s premises to inspect the goods and ensure that they are so marked or clearly identified and the Seller may enter the Purchaser’s premises to inspect the goods and ensure that they are so marked or clearly identified.
(g) The Seller reserves the right to suspend deliveries of goods the subject of contracts with the Purchaser and to decline to accept orders if any queries are unresolved after one month from the date they were first raised. (h) If payment is overdue in whole or in part, the Seller, its employees or agents, may (without prejudice to any other rights) recover or resell the goods or any part of them and may enter upon the Purchaser’s premises for that purpose.
(i) Payment in full shall become due immediately upon the commencement of any act or proceeding in which the Purchaser’s solvency is involved. The Purchaser shall not in any circumstances be entitled to deduct retain or set off the amount of any claim however arising against the Seller whether or not for a liquidated sum.
12. Claims, queries and returns
(a) No claims in respect of shortages, or discrepancies in or damage to goods will be accepted unless notified to the Seller in writing within 7 working days of the date of delivery or within 14 days of the date of the Seller’s invoice in the event of a claim for non delivery.
(b) The Seller shall have no liability in respect of damage or shortages caused by the acts or omissions of the Purchaser or of others or by causes beyond the Seller’s control.
(c) No claim in respect of any invoice as to inaccuracies in price, discount, terms of payment or any other commercial terms will be accepted unless notified to the Seller in writing within 14 days of the Seller’s invoice.
(d) No claim by the Purchaser that it has not received an invoice will be accepted unless notified to the Seller in writing within 7 days from the date of the first statement of account from the Seller identifying such invoice.
(e) In any case referred to in paragraphs (a), (c) or (d) of this Condition where no claim has been notified within the relevant period the Purchaser will be deemed to have accepted and be liable for the price of the goods in respect of which, but for such provision, a claim might have been made.
13. Suspension of deliveries
(a) The Seller reserves the right forthwith to cease or suspend deliveries to the Purchaser without liability when :
(i) the Purchaser’s account is overdue
(ii) in the Seller’s reasonable opinion any event has occurred or circumstance arisen which gives rise to doubt as to the continued creditworthiness of the Purchaser.
(b) subject and without prejudice to Conditions 11 (i) and 13(a) if the Purchaser, being an individual, shall become bankrupt or become subject to a receiving order in bankruptcy or being a corporation shall:
(i) commence to be wound up (except for the purpose of solvent amalgamation or reconstruction)
(ii) make any composition or arrangement with its creditors
(iii) become subject to an administration order
(iv) have a receiver appointed of its assets or any of them, then and in any such case, the Seller may (without being responsible for loss) terminate the contract by notice in writing to the Purchaser and recover any loss or damage it has suffered as a result of such termination, limited to the Price, and the Seller may retain any sums paid by the Purchaser under the contract in payment or part payment of such loss or damage.
14. Software
The following provisions shall apply in connection with the supply and use of software.
(a) “Software” shall mean and include computer programs, firmware and software whether forming part of the goods or delivered with them or not and all user documentation provided by the Seller.
(b) The Purchaser is granted a non-exclusive right to use the Software. This right is limited, where the Software is supplied as part of or in conjunction with the goods, to the Purchaser’s use:
(i) for normal operation of the goods and
(ii) during their existence or until terminated by the Seller by reason of breach by the Purchaser of any of the provisions of this Condition 14.
(c) Title to the Software and parts thereof licensed hereunder and all rights therein including patents, copyrights, trade marks and trade secrets applicable thereto shall remain vested in the Seller. The Purchaser may not copy or reproduce the Software in whole or in part.
(d) The Purchaser may not disassemble, reverse compile, translate or decipher the Software in whole or in part.
(e) The Software may not in whole or in part be disclosed by the Purchaser to any third party.
(f) The Seller warrants that any diskette or medium on which the Software is supplied will be free from defects in materials and workmanship under normal use for a period of ninety days after installation but no longer than one hundred and twenty days from delivery (“the relevant period”). If a defect shall occur during the relevant period, the diskette or medium may be returned by the Purchaser to the Seller carriage paid and the Seller will replace it free of charge. The Seller further warrants that during the relevant period the Software will perform substantially in accordance with its accompanying documentation (provided that it is properly used on or in conjunction with the goods or products approved by the Seller) and that such documentation correctly describes the operation of the software in all material respects. If the Seller is notified of significant errors during the relevant period it will correct any such demonstrable errors in the Software or its documentation within a reasonable time or (at its option) provide or authorise a refund of the price of the software (against return of the Software and its documentation).
(g) The Seller performs regular checks on its software for computer viruses (and other similar programs) but cannot guarantee that it is completely free from them and accordingly does not accept any liability for loss or damage caused by them. The Seller recommends that the Purchaser checks the Seller’s software for computer viruses before using it.
(h) The foregoing warranties and undertakings represent exclusive remedies and are in lieu of all other warranties expressed or implied, whether by statute or otherwise, and without prejudice to the generality of the foregoing, no warranty is given that the Software will be suitable for any particular requirement of the Purchaser or that its operation will be uninterrupted or error free.
(i) Subject and without prejudice to the foregoing provisions of this Condition 14, the provisions of paragraphs (b), (d), and (e) of Condition 10 shall, mutatis mutandis, apply to the supply and use of Software
15. Export restrictions and non authorised uses
(a) Unless otherwise agreed in writing by the Seller, all goods and services are supplied on the strict condition that :
(i) they are solely for civil use
(ii) they are not to be supplied to any country whether directly or indirectly or for any application where such supply or application is prohibited by any law or regulation binding or effective there, in the United Kingdom or the country of manufacture.
(iii) they will not in any way be installed used or applied in or in connection with the operation of any nuclear facilities such as but not limited to nuclear
power plants, nuclear fuel manufacturing plants, uranium enrichment plants, spent nuclear fuel stores or research reactors. (b) The Seller shall have no obligation under this contract to supply the goods and/or the services until the Purchaser has, where requested by the Seller, supplied to it an End-User certificate in terms satisfactory to the Seller signed by a duly authorised representative of the Purchaser confirming the matters set out in paragraphs
(a) (i) to (iii) above.
(c) The End-User Certificate referred to in paragraph (b) above shall form part of the contract and breach by the Purchaser of any of the Conditions in paragraphs (a) (i)
to (iii) above or in the End-User Certificate shall entitle the Seller :
(i) without being responsible for loss to refuse further performance under the contract
(ii) to recover from the Purchaser any loss or damage it has suffered as a result of the Purchaser’s breach limited to the Price and the Seller may retain in satisfaction or part satisfaction of the Purchaser’s liability under this Condition 15 any sums paid by the Purchaser under the contract.
(d) The Purchaser acknowledges that governmental regulations of more than one country may prevent or restrict the export of the goods to other countries. Further information will be provided on request but the Purchaser agrees to abide by any such regulations which may exist and to indemnify the Seller against any actions costs demands or expenses resulting from any failure by the Purchaser to do so.
(e) Where supply of the goods or services is subject to a requirement to obtain an export and/or import license the Seller shall apply for such license only after all necessary documentation for the application has been provided by the Purchaser who shall furnish such documentation within a reasonable time after acceptance by the Seller of the Purchaser’s order. Any delay in obtaining such license shall suspend delivery dates without liability to either party. If a license is not granted within a reasonable time or is revoked by the appropriate authorities the contract may be cancelled by the Seller without liability for damages of any kind. If such license is not granted or is revoked by reason of the act or default of the Purchaser the Seller may in addition to its right of cancellation recover from the Purchaser any loss or damage it has suffered as if paragraph (c) (ii) above applied.
16. System sales
For the purpose of this contract the word “system” shall mean computer or process hardware and any operating and/or applications software supplied therewith. Where the seller is to supply a system the following provisions shall apply.
(a) it is for the purchaser to define and specify the hardware configuration which will meet its process or other requirements and the seller shall have no responsibility as to environmental conditions at the purchaser’s site (including but not limited to the quality of the electrical supply) nor for any application or other engineering carried out by the purchaser necessary for the installation or operation of the system.
(b) in the absence of an agreed acceptance test for the system, the seller will notify the purchaser in writing when it will conduct its standard acceptance test for the system and successful completion of this test will constitute the purchaser’s factory acceptance of the system and authorise the seller to make delivery. A further acceptance test will be performed by the seller’s qualified personnel, unless specified otherwise, within thirty days of delivery to the purchaser’s site. This acceptance test is designed to verify that all equipment and/or software comprised in the system has arrived in the purchaser’s site complete, without physical damage and ready for the application of power. The seller’s written certificate that the site acceptance test has been satisfactorily concluded will constitute acceptance of the system by the purchaser. If due to the act or default of the purchaser testing is delayed for more than thirty days after delivery to the purchaser’s site the system shall be deemed to have been finally accepted by the purchaser.
17. Indemnity
The purchaser agrees to indemnify and holds the seller harmless for all loss, cost or damage incurred by the seller as a result of the purchaser’s negligence or misuse of the goods supplied by the seller.
18. Waiver
No provision of these conditions shall be considered waived or varied by either party unless confirmed in writing by duly authorised representatives of both parties. No such waiver shall be a waiver of any past or future default, breach or modification of these conditions. The non-enforcement of any of these conditions by either party shall not be construed as a waiver of that party’s other rights and obligations.
19. Legal interpretation
The contract shall in all respects be construed and operate in accordance with english law and is subject to the exclusive jurisdiction of the english courts.
