In these Conditions, the following words shall have the following meanings:-
“Seller” means Olsen Engineering Limited;
“Buyer” means the person firm company or body to whom the Seller agrees to sell Goods in accordance with these Conditions;
“Goods” means the parts goods materials or equipment specified or referred to in the Order;
“Order” means the purchase order placed with the Seller by the Buyer;
“Contract” means any contract concluded between the Buyer and Seller subject to and in accordance with these Conditions;
“Delivery” means the delivery of the Goods by the Seller in accordance with these Conditions;
“Specification” means the technical or other description (whether as to the quantity, quality, price, weight or otherwise) of the Goods, shown or referred to in the Contract and any performance schedules and/or other characteristics and details.
2. BASIS OF SALE
2.1 All Contracts shall be concluded upon the basis of these Conditions together with any special conditions issued by the Seller to the Buyer at any time prior to or with the Seller’s acceptance of Order. Variations and/or qualifications of such conditions can only be effected by a document signed by a duly authorised officer of the Seller and setting out in full the relevant variations and qualifications.
2.2 No terms or conditions submitted by the Buyer to the Seller, irrespective of their date shall prevail over these Conditions.
2.3 All Orders shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions and acceptance of Delivery shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
2.4 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into a contract the Buyer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed.
3.1 Quotations are not offers and may be withdrawn or varied at any time prior to the acceptance by the Seller of the of the Buyer’s Order but unless previously withdrawn or varied by the Seller quotations shall remain open to acceptance for 30 days (or such longer or shorter period as may have been stated, in writing, by the Seller) from the date of posting. The Seller may nevertheless elect at its option to treat as binding an acceptance received after the expiration of such period and shall be deemed to have so elected unless and until he notifies the Buyer to the contrary.
3.2 Orders for the Goods shall be given by the Buyer to the Seller by electronic data transfer (using such methods as may be agreed in writing by the Seller), in writing or orally. Verbal Orders shall be confirmed by the Buyer in writing no more than 3 days after the order is given by the Buyer but for the avoidance of doubt, it is agreed that verbal Orders shall upon their acceptance by the Seller be binding notwithstanding any failure of the Buyer to confirm the same in writing.
4. ORDERS AND SPECIFICATIONS
4.1 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including but not exclusively any relevant Specification) and for providing to the Seller any necessary information concerning the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
4.2 If the Goods are to be manufactured, processed or supplied by the Seller in accordance with a specification and/or design submitted by the Buyer, the Buyer shall indemnify the Seller from and against all costs, claims, damages and expenses made against or incurred by the Seller in connection with the settlement of any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any third party arising out of the Seller’s use of such Specification.
4.3 The Seller expressly reserves the right (but accepts no obligation) to make such changes in the Specification of the Goods as are necessary to ensure that the Goods conform with any applicable statutory requirements and the Buyer shall not be entitled to object to or reject the Goods by reason of any such changes.
4.4 All descriptions, specifications, drawings and particulars of weight and dimensions submitted with the Seller’s quotation (collectively referred to as “the Quotation Particulars”) are approximate only and such material as is contained in the Seller’s catalogues and other advertising matter is intended merely to illustrate the Goods described therein and will not form part of the Contract. The Seller reserves the right to make such reasonable changes as it considers to be necessary in the Quotation Particulars either before or during the course of the Contract provided that the Seller shall not thereby render the Goods unsuitable for the purpose for which they are intended.
5.1 Prices shall be those ruling at the time of despatch and the Seller reserves the right to revise quoted prices in the event of any change in costs. Unless otherwise stated, prices quoted are for manufacture and delivery in one consignment and are subject to the addition of whatever rate of tax may be applicable at the time of invoicing.
5.2 The cost of any variation or modification of the Contract required by the Buyer shall, if accepted by the Seller, be borne by the Buyer.
5.3 The Buyer shall, in addition to any agreed Price or Costs charged pursuant to the Contract, pay to the Seller all costs incurred or arising due to any conversion of currencies received being different to that shown in the invoice and which arise in relation to an exchange rate variance of above 1% exchange rates between USD($)/GBP(£)/ EURO(€)at the point of sale and point of invoice.
6.1 All payments shall be made in full without set-off counterclaim or withholding of any kind. 30% of the Order value shall be payable by the Buyer with its Order and the balance of 70% of the Order value shall be made within 15 days of the date of invoice and time shall be of the essence in relation to the Buyer’s payment obligations.
6.2 In the case of orders involving more than one delivery, if default is made in payment on the due date, the Seller at its option shall be entitled to treat the Contract as repudiated by the Buyer.
6.3 Each Contract shall be subject to the Seller being satisfied as to the Buyer’s credit status, both prior to and during the period of the Contract. If the Seller becomes dissatisfied with the Buyer’s credit status it may suspend performance of the Contract until it is satisfied as to the Buyer’s creditworthiness or is given such security for the price as the Seller shall deem appropriate.
6.4 Without prejudice to any other rights of the Seller, in the event of any default in payment by the Buyer, the Seller may charge interest on any overdue sums at the rate of 4% above the base rate of Lloyds TSB Bank plc from time to time both from the due date for payment until payment is actually made before and after judgment, Payment is subject to the late payment of commercial debts (interest) act 1998.
7.1 The Buyer acknowledges that all Goods are bespoke to the Buyer’s Order and/or Specification and accordingly, in the event that the Buyer should cancel its Order a cancellation charge of 60% of the Order value shall be payable by the Buyer to the Seller on cancellation at any time from the date of order up to 8 weeks before dispatch of the Goods to the Buyer. Cancellation at any time after 8 weeks before dispatch of the Goods to the Buyer shall be subject to a cancellation charge of 80% of the Order value which shall be payable by the Buyer to the Seller immediately on such cancellation. Custom orders where the product code contains an “X” are not cancellable.
8. DELIVERY AND RISK
8.1 Delivery of the Goods shall be made to the Buyer at the place agreed between the parties and the risk in respect of all Goods shall pass to the Buyer at the time of their dispatch to the Buyer at which time they shall become the sole responsibility of the Buyer. If no place for delivery is agreed, Delivery shall take place at the Seller’s address immediately prior to despatch to the Buyer. Notwithstanding such delivery, the property in and title to the Goods shall not pass to the Buyer except as provided in Clause 9 hereof.
8.2 The Seller shall endeavour to deliver the Goods by or within any date or period stipulated or referred to in its acceptance of Order. Any such date or period shall be approximate only however and the Seller will not be liable for whatever reason for any damage, loss, cost or expense whatsoever arising from any departure from the said date or period howsoever caused. Time for Delivery shall not be of the essence of the Contract unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date on giving reasonable notice to the Buyer.
8.3 If Delivery of the Goods is prevented or delayed by reason of any industrial dispute or any other cause beyond the Seller’s control then the time for Delivery shall be extended for such period as is reasonable.
8.4 The Seller may effect Delivery by instalments in which case these Conditions shall apply to each instalment as though a separate Contract and any failure or defect in any one delivery will not entitle the Buyer to repudiate the contract as a whole.
8.5 If the Seller fails to deliver the Goods for any reason (other than any cause beyond the Seller’s reasonable control or the Buyer’s fault) and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be strictly limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods. No claims for other and/or consequential loss or damage shall be allowed in connection with any such non-Delivery.
8.6 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions prior to 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: (a) store the Goods, until actual Delivery or sale (as provided in paragraph (b) hereof) and charge the Buyer for the reasonable costs (including insurance) of storage; and/or (b) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Buyer for any shortfall below the Price.
9 PROPERTY AND RISK
9.1 Risk of damage to or loss of the Goods shall pass to the Buyer on their dispatch to the Buyer at which time they shall become the sole responsibility of the Buyer.
9.2 Legal ownership in and the right to dispose of the Goods shall not pass to the Buyer until the Seller has received in full all amounts payable to it by the Buyer whether under the Contract or otherwise and whether or not any such amount shall have become due hereunder and until this time the whole right title and interest both legal and equitable in and to the Goods shall remain with the Seller and the Buyer shall keep the Goods as the Seller’s fiduciary agent and bailee property stored, protected and insured in such a way that they are identifiable as the property of the Seller and are separate from all other goods of the Buyer.
9.3 Subject to the provisions of this clause 9 the Buyer shall be entitled to the use of the Goods prior to the transfer of legal ownership but shall in no circumstances be entitled to sell the Goods unless:- (a) it has the prior written consent of the Seller; and (b) whether the Seller has given such written consent subject to conditions the Buyer complies with any and all such conditions.
9.4 Until legal ownership in the Goods is transferred as provided by this Clause 9 the Seller shall be entitled to enter the premises of the Buyer for the purpose of examining the Goods and checking compliance by the Buyer with the terms of this Clause 9 and on the occurrence of any breach by the Buyer of this Clause, the Seller shall in addition be entitled to sever the goods from any other property of the Buyer or a third party and to repossess and to resell the goods or any part thereof.
9.5 The Seller’s rights contained in this Clause 9 and the exercise thereof shall be without prejudice to all other rights of the Seller and the Seller shall be entitled to maintain an action for the price of the Goods notwithstanding that the legal ownership in the Goods may not have passed to the Buyer.
10.1 The Buyer shall immediately upon delivery of the Goods examine them to determine their quality and quantity and the Seller shall not be liable if the Buyer fails to do this and suffers damage or loss.
10.2 Claims relating to the Goods must be notified to the Seller promptly and confirmed in writing no later than seven days after the delivery of the Goods or, in the case of delay or non-delivery of the Goods, seven days after the proposed date of despatch of the Goods notified to the Buyer. The Seller shall not be under any liability whatsoever in respect of any claim if it shall not be so notified and the Seller shall be prejudiced by such delay.
11 EXCLUSION OF LIABILITY FOR CONSEQUENTIAL LOSS
11.1 The Seller shall have no liability to the Buyer for any loss, cost, expense, liability or other claim for compensation arising from any documents or other materials (including without prejudice to the generality of the foregoing the Order and the Specification) and any data or other information provided by the Buyer relating to the Goods or any instructions (whether written or oral) supplied by the Buyer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form or arising from their late arrival or non-arrival or any other fault (whether by act or omission or otherwise) whatsoever that it attributable to the Buyer.
11.2 Furthermore the Seller shall have no liability to the Buyer for any loss (including consequential loss), expense or claim whatsoever or however caused whether arising under contract, tort (including negligence) or otherwise including without limitation loss of production, loss of, or corruption to, data, loss of profits or of contracts, loss of operation time, loss of goodwill or loss of anticipated savings, even if the Buyer has advised the Seller of such a possibility.
11.3 The Seller accepts liability to the extent that it results from its own negligence or the negligence of its employees for death or personal injury without limit and physical damage to or loss of the Buyer’s tangible property up to an amount of £1,000 in respect of each incident or series of connected incidents.
11.4 The Buyer agrees that except as expressly provided in this Clause 11 the Seller will not be under any liability of any kind whatever or however caused arising directly or indirectly in connection with the Contract.
11.5 Neither party shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform any of its obligations in relation to the Goods if the delay or failure was beyond that party’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond either party’s reasonable control:-
(a) act of God, explosion, flood, tempest, fire or accident;
(b) war or threat of war, sabotage, insurrection, civil disturbance or requisition;
(c) acts, restrictions, regulations, bye-laws, prohibitions or measure of any kind on the part of any governmental, parliamentary or local authority;
(d) import or export regulations or embargoes;
(e) strikes, lock-outs, or other industrial actions or trade disputes (whether involving employees of either party or of a third party);
(f) difficulties in obtaining raw materials, labour, fuel, parts or machinery; and/or
(g) power failure or breakdown in machinery.
12.1 Subject to the preceding clauses of these Conditions the Seller warrants to the Buyer that the Goods will comply with the terms of the warranty provided to it by the original manufacturer and as notified to the Buyer from time to time and will correspond with any relevant Specification.
12.2 The Seller does not warrant or represent that the Goods to be sold will have been manufactured or processed by the Seller. The Seller may act as principal or as undisclosed agent for any other person or company in the making or performance of the Contract for the sale of the Goods.
12.3 The warranty at clause 12.1 is in lieu of and replaces all other warranties whether express or implied which are hereby excluded save as specifically set out in these Terms.
12.4 The Seller’s liability under this warranty is limited to the price of the Goods giving rise to the claim.
13. INSOLVENCY OF BUYER
13.1 This Clause 13 shall apply if
(a) any distress or execution shall be levied on the Buyer’s assets or if the Buyer shall make or offer to make any arrangement or composition with creditors or commit an act of bankruptcy or an administration order shall be presented or made against the Buyer or if the Buyer is a limited company and any resolution or petition to wind up the same (other than for the purposes of solvent reconstruction or amalgamation) shall be passed or served or an administration order be made or if a receiver or administrator be appointed of the Buyer’s assets and undertaking or any part thereof; or
(b) the Buyer ceases or threatens to cease to carry on business; or
(c) the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer or if in the opinion of the Seller serious doubts arise as to the solvency of the Buyer.
13.2 If this Clause 13 applies, then without prejudice to any other right or remedy available to the Seller:-
(a) the Seller shall be entitled to terminate the Contract or suspend any further deliveries under the Contract without any liability to the Buyer; and
(b) any entitlement of the Buyer hereunder to use Goods delivered but not paid for in full shall terminate forthwith; and
(c) the Buyer shall allow the Seller to enter any premises of the Buyer to sever the Goods from other property to repossess and to resell any Goods delivered but not paid for in full or any part thereof; and
(d) if Goods have been delivered but not paid in full, the price therefore shall become immediately due and payable notwithstanding any agreement to the contrary reached between the Buyer and the Seller prior to any event referred to in Clause 13.1.
13.3 Without prejudice to any of the Seller’s rights to claim damages the Buyer will on termination or cancellation of the Contract for any reason whatsoever or if the Buyer cancels, extends or delays or purports to cancel, extend or delay the Contract or fails to take delivery of any Goods, indemnify the Seller against loss cost damage or expense incurred by the Seller in connection with the non-performance of the Contract.
14 INTELLECTUAL PROPERTY
For the purpose of this clause 14 “Intellectual Property Rights” means all patents, copyrights, design rights, trademarks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or not), and all applications for the same which may now, or in OLS-QUA-DOC-050-R1 – 20/03/2020- CORPORATE/ASS324-JAL0254641/DOCS/037-001[08.05.00] the future, subsist anywhere in the world, including the right to sue for and recover damages for past infringements.
14.1 All Intellectual Property Rights in the Specification of the Goods provided pursuant to any Order shall and at all times remain the sole property of the Seller.
14.2 Where any designs, details or other Specification information in the form of documents, plans, electronic information or otherwise is provided to the Buyer for the purpose of assessing the suitability of the Goods or their Specification all Intellectual Property Rights in such items are provided solely for the purpose of the Buyer to make their own assessment as to the suitability of the Goods and no title, right or licence to use such Intellectual Property Rights shall pass to the Buyer.
14.3 The Buyer shall not and has no right to make, or authorise the making of, any copies of the Intellectual Property Rights provided by the Seller, in whatever form, and shall not pass or otherwise purport to licence, assign, sell or otherwise transfer in any way any Intellectual Property Rights of the Seller or documentation relating thereto to any third party without the Seller’s prior written consent.
14.4 The Buyer shall not at any time seek in any way to reverse engineer, decompose, modify, amend or otherwise utilise the Intellectual Property Rights contained in the Goods or the Specification to which the Goods are provided pursuant to any Order.
15 CONFIDENTIAL INFORMATION
For the purpose of this clause 15 “Confidential Information” means all information whether marked as “Confidential” or not which is confidential in nature, in whatever form (including without limitation written, oral, printed, photographic, visual and electronic) disclosed by the Seller to the Buyer whether prior to or after the commencement of the Contract and shall include without limitation, all letters, documents, agreements, messages, codes, data, formulae, specifications, projections, plans, drawings, processes, presentations, software, information or materials whether of a technical, commercial, technological, operational or financial nature or otherwise, details relating to any business affairs, business plans, research and development material, graphics, prototypes, trade secrets, know-how, methodology, patents or any other intellectual property, customer information, and other material of whatever description, whether subject to or protected by copyright, patent, trade mark, design, registered or unregistered or otherwise, which is made available by or on behalf of the Seller to the Buyer directly or indirectly and includes, without limitation, any information, analyses, compilations, notes, studies, memoranda or other documents derived from, containing or reflecting such Confidential Information but excludes information which:
(I) is publicly available or becomes publicly available (other than as a result of disclosure by the Buyer or any other person contrary to the terms of this Contract);
(II) was available (as can be demonstrated by the Buyer’s written records or other reasonable evidence) to the Buyer or other person to whom it is furnished hereunder free of any restriction as to its use or disclosure prior to its being so furnished;
(III) becomes available to the Buyer (as can be demonstrated by the Buyer’s written records or other reasonable evidence) from a source other than the Seller, which source is not bound by any obligation of confidentiality to the Seller in relation to such information; and/or
(IV) is independently developed by the Buyer without any use of the Seller’s Confidential Information and does not relate to the Goods;
(V) is required by law or regulation to be disclosed to any person who is authorised by law or regulation to receive the same (after consultation, if practicable, with the Seller to limit disclosure to such authorised person to the extent necessary).
15.2 The Buyer undertakes not to use the Seller’s Confidential Information otherwise than in the exercise and performance of its rights and obligations under this Contract (Permitted Purposes).
15.3 The Buyer confirms and agrees:
(a) the Buyer shall treat as confidential all Confidential Information of the Seller contained or embodied in the Goods, or otherwise supplied to the Buyer during the performance of any Contract;
(b) only disclose the Confidential Information under binding obligations of confidence (which it undertakes to enforce and for which it is legally responsible) to those of its subsidiaries, employees, sub-contractors, seconded staff, officers, agents, consultants and collaborators as need to have access thereto wholly necessarily and exclusively for the Permitted Purposes whose identity the Buyer shall provide to the Seller at their request;
(c) not without the Seller’s prior written consent to make any commercial use of or make any commercial gain from the Confidential Information or seek to obtain any protection of the intellectual property contained in the Confidential Information;
(d) to take all necessary precautions to ensure that the undertakings given in this clause 15 are enforced and enforceable and take such action as to ensure that patentability is not destroyed through making information available to the public, for instance by written or oral description.
15.4 The Buyer shall notify the Seller immediately if it or any of its staff connected with the provision or receipt of the Goods becomes aware of any unauthorised disclosure of any Confidential Information and shall afford reasonable assistance to the Seller in connection with any enforcement proceedings which that other party may elect to bring against any person.
15.5 The Buyer acknowledges and agrees that the unauthorised disclosure or use of the Confidential Information by the Buyer or a third party may cause irreparable loss, harm and damage to the Seller and that monetary damages may not be a sufficient remedy and compensation for breach accordingly without prejudice to any other rights and remedies available to the Seller, agrees that the Seller shall be entitled to relief by way of interdict, specific performance or otherwise.
The Buyer agrees to indemnify the Seller, in full, against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Seller arising out of or in connection with any breach by the Buyer of clauses 14 or 15.
17. WHOLE AGREEMENT
Each party acknowledges that the Contract together with any variations and/or qualifications made pursuant to these Conditions contained the whole agreement between the parties and it has not relied upon any oral or written representation made to it by the other or its employees or agents.
These conditions and each and every Contract shall be governed by English Law and subject to the jurisdiction of the English courts.