“The Contract” means the agreement concluded between the Purchaser and the Supplier for the sale and purchase of Goods (and the Installation where specified in an Order) as specified in an Order and subject to these Conditions.
“Order” means the order placed by the Purchaser whether pursuant to a Proposal or otherwise. ”
The Purchaser” means the individual, organisation or company purchasing the Goods and/or Installation.
“The Supplier” means EMSc (UK) Ltd.
“The Goods” means all goods, equipment, materials, or articles, which the Purchaser is required to buy under the Contract.
“Specification” means the specification of the Goods and/or Installation as supplied by the Supplier.
“Proposal” means the document provided by the Supplier to the Purchaser setting out information relating to the Goods and Installation including anticipated costs savings.
“The Contract Price” means the price exclusive of Value Added Tax payable by the Purchaser to the Supplier as specified in the proposal. To the extent that the supply of Goods is chargeable with Value Added Tax or any other taxes or duties, such taxes or duties shall be added to the Contract Price.
“Installation” means the service of installing and commissioning the Goods into the Purchaser’s systems where specified in an Order. The headings to these conditions shall not affect their interpretations.
The Goods and Installation shall be purchased in accordance with these Conditions. Any conditions which the Purchaser may seek to impose and which in any way add to vary or contradict these conditions shall be excluded and not form part of the Contract unless each of such conditions has been specifically agreed to in writing by the Supplier.
The Supplier shall not be obliged to accept any Order placed by the Purchaser but any Order accepted by the Supplier is subject to these Conditions. The Supplier shall be deemed to have accepted an Order on the earlier of the Supplier either commencing the processing of an Order or on formally accepting an Order in writing. Any variation to any Order shall have no effect unless the Supplier makes or agrees to such variation in writing.
4.1 The Supplier will deliver the Goods within the United Kingdom to the location shown on the Purchaser’s Order. The Goods may be delivered in instalments as shall be notified to the Purchaser by the Supplier in writing. The cost of delivery shall be included within the Contract Price.
4.2 The Supplier shall provide delivery and any Installation completion dates to the Purchaser upon written receipt of an Order and deposit where applicable. The time of delivery or of Installation shall not be of the essence. If, despite using reasonable endeavours, the Supplier is unable for any reason to fulfil any delivery of the Goods and/or complete Installation by the specified date, the Supplier will be deemed not to be in breach of the Contract, nor will the Supplier have any liability to the Purchaser howsoever caused (including, but without limitation, as a result of negligence) by any delay in delivery of Goods or Installation.
4.3 The Purchaser shall at the earliest possible opportunity notify the Supplier of any change to the location as indicated on an Order for the purpose of delivery but the Supplier shall not be obliged to deliver to any location other than that specified in the Order unless otherwise agreed.
4.4 The Purchaser shall notify the Supplier in writing within 7 days after the date of receipt of the Supplier’s invoice of any claim for non delivery or of damage or deterioration or of short or inadequate delivery (or Installation, where ordered) of Goods which should be apparent on reasonable inspection. Failure to do so shall constitute a waiver by the Purchaser of any right or remedy in respect of such a claim.
4.5 The Purchaser shall allow the Supplier reasonable opportunity to inspect the Goods in the event of any notification in accordance with the preceding sub‐paragraph being made.
4.6 Title in the Goods shall not pass until Condition 7.3 has been complied with, but risk of damage to or loss of the Goods shall pass to the Purchaser when the Goods are delivered to the location specified in the Order. Upon delivery of the Goods the Purchaser shall insure the Goods until Condition 7.3 has been complied with or unless otherwise agreed in writing. The Purchaser shall hold all proceeds of the insurance policy referred to in this Condition if any claim is made on the policy on trust for the Supplier and not mix it with any other money or pay the proceeds into any overdrawn bank account.
In the event of the Purchaser being unable to accept delivery of the Goods, the Purchaser shall at the earliest possible opportunity give the Supplier notice in writing. Without prejudice to the Supplier’s other rights and remedies, in the event that the Purchaser gives such notice, the Supplier shall be entitled to arrange storage, transport, insurance and demurrage the costs of which shall be paid by the Purchaser in addition to the Contract Price and in the event that the Supplier chooses to pay for such costs directly, the Purchaser shall reimburse the Supplier in respect of such payments along with the Contract Price. If the Purchaser is unable to accept delivery of the Goods, payment will be due under the terms of the Contract as if delivery had been made.
Without prejudice to the Purchaser’s rights as set out in Condition 10, the return of Goods, unless specifically previously agreed in writing as “sale or return” will under no circumstances be accepted.
7.1 Except as otherwise specified by the Supplier in writing, the Contract Price shall be payable as follows: 1. A deposit equal to 25% of the Contract Price with the Order or on receipt of the deposit invoice and 2. a final payment of the balance of the Contract Price within 30 days from date of invoice. Without prejudice to the Purchaser’s obligation to pay the full Contract Price, Supplier shall be entitled to raise an invoice:
(a) for the balance of the full Contract Price on or after (i) the Supplier giving notice of completion of Installation (where Installation forms part of the Proposal, and subject to paragraph (b) below) or (ii) delivery (where Installation does not form part of the Proposal); or
(b) for the balance of the full Contract Price (less 20% of the Installation cost as set out in the Proposal) , upon or after the expiry of the four week period commencing on any Installation date referred to in Clause 4.2 where such Installation does not take place within that period through no fault of the Supplier.
No payment will be deemed to have been received until the Supplier has received the Contract Price in full in cleared funds.
7.2 Time for payment will be of the essence under the Contract and the Purchaser will indemnify the Supplier against all expenses and legal costs incurred by the Supplier in recovering overdue amounts. If payment of the Contract Price or any part thereof is not made by the due date the Supplier shall be entitled to charge interest on the outstanding amount at the rate of 4% per annum above the Royal Bank of Scotland base rate, accruing daily.
7.3 Title in the Goods shall remain with the Supplier, until payment in full for all Goods and Installation has been received by the Supplier in accordance with the terms of the Contract and the Purchaser has accepted Installation (where ordered) in accordance with Condition 10.2.
7.4 If payment is overdue in whole or in part, the Supplier may (without prejudice to any of its other rights) recover the goods or any of them and resell them and the Supplier is hereby authorised by the Purchaser to enter upon the Purchaser’s premises itself or by its servants or agents for that purpose.
7.5 Payment shall be due immediately upon the occurrence of any event specified in Conditions 8.1(i) to 8.1(iv) below. Until Condition 7.3 has been complied with the Purchaser shall hold the Goods as bailee for the Supplier and the Purchaser shall store the goods in a satisfactory condition and in such a way that they are clearly the property of the Supplier and further the Purchaser shall not without the express consent of the Supplier in writing be entitled to sell the goods on and/or incorporate them in any other article and/or make them the subject of any charge or any other encumbrance and/or make use of them in any other way.
8.1 The Supplier shall be entitled without prejudice to its other rights and remedies either to terminate wholly or in part the Contract or to suspend any further deliveries under the Contract and retake possession of the Goods, or any part thereof, and can so summarily terminate the Contract without compensation to the Purchaser in any of the following events: ‐
i) the Purchaser being in material breach of any term of these Conditions and such breach not being capable of remedy;
ii) the Purchaser being in material breach of any term of these Conditions and failing to remedy such breach within 28 days of receipt of written notice specifying the breach and requiring it to be remedied;
iii) the Purchaser (being an individual or firm) becomes bankrupt or goes into sequestration, or (being a partnership) is wound up by the court or becomes bankrupt or goes into partnership administration or sequestration, or (being a body corporate) is wound up by the court or is voluntarily wound up by reason of its inability to pay its debts or an administrator or receiver is appointed of any part or all of its income or assets and in any case if the Purchaser enters into any informal or voluntary arrangement (whether or not in accordance with the Insolvency Act 1986) with or for the benefit of the general body of creditors of the individual, the partnership or the body corporate;
iv) the Purchaser suffers the equivalent of any similar or analogous event in 8.1(iii) (above)in any jurisdiction; or
v) Non payment in accordance with Condition 7.
8.2 Without prejudice to any of its other rights or remedies, the Supplier shall have the right to terminate the Contract without any liability to the Purchaser if, in the reasonable opinion of the Supplier after an inspection into the Purchaser’s financial or trade status or in light of any report considered by the Supplier, the Supplier at its absolute sole discretion deems that the Purchaser may not be able to pay the Contract Price.
8.3 Cancellation of order by purchaser. The sum of 25% of the total order value will be payable by the purchaser to the supplier.
9.1 The Supplier warrants that the Goods and Installation sold to the Purchaser will comply with the Specification (unless otherwise agreed by the parties in writing).
9.2 Provided the Purchaser performs all his obligations under the provisions of these Conditions the Supplier will repair or replace (at the Supplier’s discretion) free of charge, any part or parts which are shown to the Supplier’s satisfaction to be defective due to faulty material or workmanship or which do not comply with the Specification provided such part or parts shall be delivered to the Supplier’s works for the time being (in the United Kingdom) carriage paid by the Purchaser within 15 years from the date of dispatch from the Supplier’s works.
9.3 Any claim under these warranties must be received in writing by the Supplier within 30 days of the discovery thereof. The Supplier’s obligation under these warranties shall be limited to the repair or replacement, at the Supplier’s option, of the Goods, or any part thereof, once the Supplier has determined the Goods are not as warranted. Any Goods or parts repaired or replaced pursuant to this warranty will be warranted for the remainder of the original warranty period.
9.4 The Supplier shall with all reasonable speed (if in breach of any warranty) make good the defects so specified subject to the Purchaser affording the Supplier the necessary access and where appropriate permitting any defective materials to be removed.
9.5 In the case of defects in the Goods or part of the Goods which result from fair wear and tear or the effects of erosion, corrosion or misuse of the Goods by the Purchaser or where the Purchaser has without reference to the Supplier tried to make good the defect, Condition 9.2 shall not apply and the cost of replacement or repair will be borne by the Purchaser in addition to the Contract Price, payable on delivery.
9.6 In the event that the Purchaser can provide evidence to the Supplier’s reasonable satisfaction that the percentage savings of the kWh achieved are less than the savings specified in the Final Proposal, the Supplier shall make a one-off cash payment to the Purchaser after the first 12 months, equal to the difference between
(a) the guaranteed percentage of the kWh saving specified in the Proposal and
(b) the actual percentage of kWh saving made as a result of the Purchaser’s proper use of the Goods properly installed. The one-off payment will correspond to the payback period (i.e. if the shortfall is 2% which is equivalent to £2,000 and the payback was 3 years, the payment will be equivalent to £2,000 x 3 years = £6,000. Therefore, the payback is guaranteed). The comparison periods to be the immediate 12 months prior to proposal date and the 12 months after installation, all things being equal during the two 12 month periods.
9.7 The Supplier’s obligation under Condition 9.6 will not apply where:
(i) the Contract Price has not been paid by the date of the complaint from the Purchaser(ii) the Goods have been improperly altered in any way whatsoever, or have been subject to misuse (such as overloading the purchased system);
(iii) any instructions as to storage of the Goods have not been complied with in all respects;
Or (iv) the savings referred to in the final proposal are not made due to factors beyond the Supplier’s control (such as changes in environmental conditions, changes in production outputs, changes in building usage, changes in type of equipment, etc).
9.8 In the event of an Order for a larger Powerstar system for the same location within 5 years of purchasing previous Goods, the Supplier will collect the Goods and install the larger system.
The Purchaser will receive a credit for the removed Powerstar system and will be invoiced for the newly installed Goods (i.e. the Purchaser will pay the difference between the two installed Powerstar systems, the removal cost of existing system and installation cost of the new larger system).
9.9 Except as otherwise provided in these Conditions, all warranties, conditions and other terms implied by statute or common law (except for the conditions implied by section 11 of the Sale of Goods Act 1979 and section 2 of the Sale and Supply of Goods and Services Act 1982) are, to the fullest extent permitted by law, excluded from the Contract.
10.1 Where Installation forms part of the Contract, the Purchaser agrees to provide full access to the installation site and systems (electrical and pneumatic) into which the Goods are to be installed at the times previously agreed with the Supplier and the Purchaser shall prepare the installation site for Installation.
10.2 Upon notification by the Supplier of completion of the Installation, the Purchaser must sign the acceptance documentation in the form provided by the Supplier confirming acceptance that Installation has been completed in compliance with the Specification or provide full reasons for not so signing such acceptance documentation. The Purchaser shall be deemed to have accepted that Installation has been completed in compliance with the Specification if, within 14 days of the Supplier providing such acceptance documentation to the Purchaser, the Supplier has not received from the Purchaser either (a) such signed acceptance documentation, or (b) its reasons for not signing such acceptance documentation. Title in the Goods will not transfer to the Purchaser until such acceptance (either deemed or explicit) and the Contract Price has been paid in full pursuant to Condition 7.1.
10.3 The Supplier warrants to the Purchaser that it will use reasonable skill and care in the performance of the Installation under this agreement.
10.4 The following rates apply to any installation cancelled/postponed by the client.
5 days or more notice
4 days notice
25% of installation price.
24 hour notice
50% of installation price.
In addition to the above, there will be a labour cost (minimum 4 hours) which is:
Less than 24 hours notice
100% of installation price.
In addition to the above, there will be a labour cost (minimum 8 hours) which is:
Installation price includes but is not limited to generator hire and power outage charge. A minimum of 6 staff is involved in every installation. Some complex installations may involve up to 12 staff.
11.1 The Supplier does not exclude or limit its liability under this Agreement for:
(i) death or personal injury caused by its negligence; (ii) fraudulent misrepresentation; or (iii) any other type of liability which cannot by law be excluded or limited.
11.2 Subject to Condition 11.1 and unless otherwise specified in this Agreement, the Supplier limits its liability under these Conditions, whether such liability arises in contract, tort (including without limitation negligence) or otherwise, as follows:
(i) the maximum liability of the Supplier for all claims under this Agreement shall be limited to the Contract Price for each claim or series of related claims; and (ii) the Supplier shall not be liable for:
(a) loss of business, use, profit, anticipated profit, contracts, revenues, goodwill or anticipated savings; (b) loss of data or use of data; or
(c) consequential, special or indirect loss or damage; even if such party has been advised of the possibility of such loss or damage.
11.3 Unless otherwise expressly stated in the Contract the Supplier shall not be liable to the Purchaser for the performance of the Goods manufactured in accordance with the designs, drawings and data supplied by the Purchaser to the Supplier pursuant to the Contract.
11.4 The provisions of this Condition 11 shall survive the termination or expiry of the Contract.
The Purchaser hereby undertakes not at any time to divulge any of the terms of the Contract or use any information in relation to the Supplier’s business or any other information received from the Supplier in relation to the Contract of a confidential or proprietary nature other than for the purposes expressly envisaged by these Conditions.
13.1 The ownership of and sole rights to obtain the ownership of all intellectual property rights relating to the Goods and/or the Installation shall at all times be vested in the Supplier and the Supplier shall be responsible for the registration and other protection of such intellectual property rights in the Goods and/or Installation as the Supplier deems fit.
13.2 The Purchaser shall not use the Supplier’s name, logo or any other identification marks for the purpose of advertising or publicity without the prior written consent of the Supplier.
13.3 If the Goods have been manufactured to the specification or design of the Purchaser, the Purchaser shall indemnify the Supplier and keep the Supplier indemnified from and against any and all losses, liabilities, costs, claims, demands, expenses and fees (including, but without limitation, legal and other professional fees), actions, proceedings, judgments awarded and damages suffered or incurred by the Supplier arising out of or in connection with any actual or alleged infringement of any intellectual property rights of any third party where such liability arises as a consequence of the specification or a modification of the specification supplied by the Purchaser.
Without prejudice to any rights or remedies implied by statute or common law or under any provision of these Conditions or the Contract, the Purchaser shall indemnify the Supplier and keep the Supplier indemnified in full against any and all losses, liabilities, costs, claims, demands, expenses and fees (including, but without limitation, legal and other professional fees), actions, proceedings, judgments awarded and damages suffered or incurred by the Supplier arising out of or in connection with any and all acts and omissions of the Purchaser, its employees, agents or sub contractors including, but without limitation, all acts and omissions relating to the marketing, advertising and sale of the Goods.
Goods supplied by the Supplier to its own specification or design are designed to be safe and without risk to health provided they are used strictly in accordance with any instructions or information issued by the Supplier as to their use and are also used with any necessary safety precautions. If the Purchaser is unclear as to the correct use of the Goods it should immediately contact the Supplier for clarification. It is the responsibility of the Purchaser to meet all safety standards in the application, use and sale of the Goods.
16.1 If either party is delayed or hindered in or prevented from performing any of its obligations under the agreement by reason of Act of God, fire, flood, accident, explosion, breakdown or failure of plant or machinery, war, riot, civil disturbance, strike, labour dispute, acts, order or regulations of Government, failure (whether partial or total) of or shortage in any of the Supplier’s or its supplier’s existing or contemplated sources of material (including parts and components) or of fuel or labour or transport whether such failure or shortage be existing or apprehended by the Supplier, failure of any supplier or sub‐contractor of the Supplier to perform any contract with the Supplier or by reason of any cause whether or not of the same nature as the foregoing beyond its reasonable control, it shall be under no liability to the other in respect of such obligation, but the time for performing the same shall be extended until the operation of the causes preventing hindering or delaying the performance thereof has ceased.
16.2 Without prejudice to the generality of the foregoing, if manufacture or delivery by the Supplier is delayed or prevented or if the quantity of goods available for supply by the Supplier is reduced by reason of any of the causes described in paragraph 16.1 above, the provisions of the said paragraph shall apply and the Supplier shall be entitled to suspend deliveries in whole or in part and shall not be obliged to purchase or otherwise acquire any plant from any third party or to arrange for any supply of plant by any third party.
17.1 These Conditions and the acknowledgement of Orders represent the entire agreement between the parties relating to the sale and purchase of Goods and/or Installation and supersede all previous agreements, arrangements and understandings between the parties relating to the sale and purchase of the Goods and/or Installation.
17.2 Each Party acknowledges that in entering into the Contract it places no reliance on any representation, warranty or other statement relating to the subject matter of the Contract, other than as expressly set out in these Conditions and any acknowledgement of the applicable Order.
17.3 Neither Party shall have any liability or remedy in respect of any representation warranty or other statement being false, inaccurate and/or incomplete unless it was made fraudulently or is contained in these Conditions. Nothing in these Conditions shall exclude or limit the liability of either Party for a fraudulent misrepresentation.
18.1 Notices under this agreement may be served by personal delivery, by special delivery first class post or by email.
18.2 Notices shall be deemed to be served:
(i) on delivery when delivered personally; or
(ii) on receipt of acknowledgment of email confirming receipt; or
(iii) two (2) days after mailing if sent by special delivery mail, provided the acknowledgment of receipt required for special delivery is signed
18.3 If a party changes its address for notification purposes, then it shall give the other party written notice of the new address and the date on which it shall become effective.
19.1 In the event of any queries, inaccuracies, typographical, clerical or other error or omission in any sales literature, quotation, price list or acknowledgment of Order, the Supplier shall contact the Purchaser and such document shall be subject to correction without any liability on the part of the Supplier.
19.2 Nothing in these Conditions or any document referred to in either document or any arrangement contemplated by the parties shall be construed as creating a partnership between the parties for any purpose and neither party shall have the power or authority to bind the other party or impose any obligations on it for the benefit of any third party.
19.3 Unless these Conditions provide otherwise, no delay in exercising or failure to exercise any of the rights of either party arising from or in connection with the Contract or these Conditions shall operate as a waiver or release of that right.
19.4 The Supplier shall be entitled to carry out its obligations under the Contract through any agents or sub‐contractors appointed by it in its absolute discretion for that purpose.
19.5 The Purchaser may not assign, sub contract, sub license or otherwise dispose of any of its rights arising from the Contract or these Conditions without the prior written consent of the Supplier.
19.6 If any term, clause, condition or part of these Conditions is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision shall, to the extent required, be severed from these Conditions and shall be ineffective without, as far as is possible, modifying any other provision or part of these Conditions and this shall not affect any other provisions of the Contract which shall remain in full force and effect.
19.7 An entity which is not expressly a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
These Conditions and the Contract shall be governed by English law and subject to the provisions of Condition 9 the Parties hereby agree to submit to the exclusive jurisdiction of the English Courts.