These Website Terms of Use ("Terms of Use") governs your use of the websites owned and operated by Carl Stahl Evita Limited and its affiliates, subsidiaries, divisions and brands, including www.carlstahlevita.co.uk and www.carlstahl.com/gb/en/ and corresponding social media websites and mobile applications (referred to each as a "Website" or collectively as the "Websites").
By using a Website, you agree to follow these Terms of Use. When these Terms of Use refer to "use" of a Website, the term "use" is intended to be broadly construed to include any direct or indirect access to or use of the Website or any information or data included on the Website.
These Terms of Use does not apply to any other website owned or operated by any third party retailer, supplier or service provider; even if such third party links to a website owned by Carl Stahl Evita or Carl Stahl Evita links to that third party website. Accordingly, these Terms of Use does not apply to the practices of any third party, affiliate, or business partner that Carl Stahl Evita does not own or control. Additionally, the owners of social media services may have additional terms and conditions that supersede these Terms of Use depending on a user's own personal preferences with that social media provider. You acknowledge that Carl Stahl Evita does not control such third party websites and is not responsible for any content, services, products or practices of such third parties.
These Terms of Use relates only to your use of a Website and is further subject to Carl Stahl Evita’s Website Privacy Policy, which governs Carl Stahl Evita’s policy with respect to collection and use of information through the Websites; and Carl Stahl Evita’s Standard Terms and Conditions of Sale, which govern sales of products through the Website.
Carl Stahl Evita reserves the right to change these Terms of Use in its sole discretion without advance notice. Changes to these Terms of Use become effective on the date when the updated Terms of Use are published on a Website. By using the Site after a change in the Terms of Use, you agree to follow and be bound by the Terms of Use as amended.
Carl Stahl Evita reserves the right to modify in whole or in part, or temporarily or permanently discontinue, any Website or any products, services or content contained on a Website for any reason and at any time and without notice to you. Should you be unable to locate an item you saw on a previous visit to our Websites, please contact our Customer Service department and we will make every effort to meet your needs.
Carl Stahl Evita periodically schedules system downtime for maintenance and other purposes and the Website may be unavailable due to unplanned system outages or circumstances outside of Carl Stahl Evita's control. Carl Stahl Evita shall have no liability to any user or third party whatsoever for the resulting unavailability of a Website or for any loss of data or transactions caused by planned or unplanned system outages or the resultant delay, misdelivery, or non-delivery of information caused by such system outages.
Carl Stahl Evita has made every effort to accurately display the products featured on the Websites. However, the colors we use and the capabilities of your computer monitor will affect the colors you see on your screen. We cannot guarantee that your monitor's display of any color, texture, or merchandise details will be accurate.
We attempt to provide the most recent, accurate, and reliable information on our Websites. However, there may be occasions when information featured on our Websites may contain typographical errors, incomplete data, inaccuracies, or items featured on the Websites that are no longer in stock. We do not warrant that the information accessible via these Websites is accurate, complete or current. Any errors are unintentional and we apologize if erroneous information is reflected in merchandise price or item availability, or in any way affects your individual order. We reserve the right to correct errors and to update product information at any time.
The Websites may utilize both secure and non-secure sections and pages. Carl Stahl Evita uses commercially reasonable security protocols to protect the transmission of data submitted using the secure portions of the Website. Before submitting any sensitive data using the Website, be sure your web browser displays a secure web address beginning with "https://..." Carl Stahl Evita cannot guarantee that unauthorized third parties will never be able to defeat the security measures employed by Carl Stahl Evita. Although we cannot guarantee that our systems are 100% secure 100% of the time, we periodically update our technology in order to improve the protection of customer information.
Carl Stahl Evita, its affiliates or its third party licensors own all copyrights, trademarks, trade dress and other intellectual property contained on the Websites or contained in email correspondence you may receive through a Website ("Content"). Content includes images, illustrations, designs, icons, photographs, trademarks, logos, text, software, sounds and the arrangement of Content on the Websites as a whole. You shall not use any Content for any purpose without the prior written consent of Carl Stahl Evita or the respective owner of such Content.
You agree to use the Websites only for lawful purposes. You agree not to do any of the following: (a) communicate to Carl Stahl Evita or upload to or transmit on a Website any defamatory, indecent, obscene, harassing, violent or otherwise objectionable material, or any material that is, or may be, protected by copyright, without permission from the copyright owner; (b) use a Website to violate the legal rights (including the rights of publicity and privacy) of others or to violate the laws of any jurisdiction; (c) intercept or attempt to intercept electronic mail not intended for you; (d) misrepresent an affiliation with any person or organization; (e) restrict or inhibit use of a Website by others; (f) upload or otherwise transmit files that contain a virus or corrupted data; (g) collect information about others (including email addresses) without their consent (h) download a file or software or include in a message any software, files or links that you know, or have reason to believe, cannot be distributed legally over a Website or that you have a contractual obligation to keep confidential (notwithstanding its availability on a Website); (i) post "spam", transmit chain letters or engage in other similar activities; or (j) engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of a Website, or which, as determined by Carl Stahl Evita, may harm Carl Stahl Evita or users of a Website or expose them to liability.
You understand and acknowledge that you are responsible for whatever content you submit, and you, not Carl Stahl Evita, have full responsibility for such content, including its legality, reliability and appropriateness. By uploading or otherwise transmitting material to Carl Stahl Evita or to any area of a Website, you warrant that the material is your own or is in the public domain or otherwise free of proprietary or other restrictions and that you have the right to communicate it to Carl Stahl Evita and/or post it to a Website. You grant to Carl Stahl Evita the right to use all content you upload or otherwise transmit to Carl Stahl Evita or a Website in any manner Carl Stahl Evita chooses, including, but not limited to, copying, displaying, performing or publishing it in any format whatsoever, modifying it, incorporating it into other material or making a derivative work based on it.
Carl Stahl Evita reserves the right, but does not assume any responsibility, to (a) remove any material posted on a Website which Carl Stahl Evita, in its sole discretion, deems inconsistent with the foregoing commitments, including any material Carl Stahl Evita has been notified, or has reason to believe, constitutes a copyright infringement; and (b) terminate any user’s access to all or part of a Website. However, Carl Stahl Evita can neither review all material before it is posted on a Website nor ensure prompt removal of objectionable material after it has been posted. Accordingly, Carl Stahl Evita assumes no liability for any action or inaction regarding transmissions, communications or content provided by third parties. Carl Stahl Evita reserves the right to take any action it deems necessary to protect the personal safety of users of a Website and the public; however, Carl Stahl Evita has no liability or responsibility to anyone for performance or nonperformance of the activities described in this paragraph.
Your failure to comply with the above provisions may result in the termination of your access to the Carl Stahl Evita Website and may expose you to civil and/or criminal liability.
Portions of the Websites may allow users to submit product reviews and Carl Stahl Evita welcomes user and customer comments regarding the Websites and Carl Stahl Evita products and services. However, any non-personal information you transmit to Carl Stahl Evita through a Website is not, and will not be treated as private, confidential or proprietary. We may make unrestricted use of any non-personal information you transmit to Carl Stahl Evita through a Website.
Should you post any review on a Website, you grant Carl Stahl Evita and its third party marketing and advertising partners the right to use, publish, republish, and distribute that review, or portions thereof, online, in product catalogs and other marketing and advertising materials.
Carl Stahl Evita welcomes feedback, questions and comments about its products, services and its Websites. As a general policy, Carl Stahl Evita does not accept unsolicited ideas for products or services through the Websites. All communications and other materials (including, without limitation, unsolicited ideas, photographs, drawings, suggestions, or materials) you send to a Website by e-mail or otherwise will upon submission become the sole and exclusive property of Carl Stahl Evita and may be used by Carl Stahl Evita for any purpose whatsoever, commercial or otherwise, without compensation to you.
Certain portions of the Websites may allow you to set up an account or subscribe to certain features or benefits, including creating a unique user name and password or providing certain personal information. By joining, subscribing or submitting information to Carl Stahl Evita through a Website, you expressly agree to (a) keep your login and password information confidential; (b) ensure that any person accessing your account is aware that the account is subject to these Terms of Use; (c) supervise and be responsible for any use of your account; (d) promptly change your login information if you believe that an unauthorized person has access to your login information.
Furthermore, by joining, subscribing or submitting information to Carl Stahl Evita through a Website, you expressly grant Carl Stahl Evita, its affiliate, or third party service provider the right to communicate with you via e-mail, mail, fax or telephone.
You are also responsible for maintaining the confidentiality of your account information and password and for restricting access to such information and to your computer. You agree to accept responsibility for all activities that occur under your account or password. Carl Stahl Evita reserves the right to suspend or cancel any user account for any other reason in its sole and absolute discretion.
Carl Stahl Evita does not assume any liability for the materials, information and opinions provided on, or available through, the Website or any other Carl Stahl Evita web site (Site Content). Reliance on the Site Content is solely at your own risk. Carl Stahl Evita disclaims any liability for injury or damages resulting from the use of any Site Content.
THE WEBSITES, THE CONTENT AND THE PRODUCTS AND SERVICES PROVIDED ON OR AVAILABLE THROUGH ANY WEBSITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. NEITHER Carl Stahl Evita NOR ANY PERSON ASSOCIATED WITH Carl Stahl Evita MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE QUALITY, ACCURACY, OR AVAILABILITY OF ANY WEBSITE. SPECIFICALLY, BUT WITHOUT LIMITING THE FOREGOING, NEITHER Carl Stahl Evita NOR ANYONE ASSOCIATED WITH Carl Stahl Evita WARRANTS OR REPRESENTS THAT ANY WEBSITE, ITS CONTENT OR THE SERVICES PROVIDED ON OR THROUGH SUCH WEBSITE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; THAT THE WEBSITES OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT THE WEBSITES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS. Carl Stahl Evita DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.
IN NO EVENT WILL Carl Stahl Evita OR ITS LICENSORS OR CONTRACTORS BE LIABLE FOR ANY DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR INABILITY TO USE, ANY WEBSITE, ITS CONTENT, ANY SERVICES PROVIDED ON OR THROUGH SUCH WEBSITE OR ANY LINKED SITE, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, LOST PROFITS OR DAMAGES RESULTING FROM DELAY, INTERRUPTION IN SERVICE, VIRUSES, DELETION OF FILES OR ELECTRONIC COMMUNICATIONS, OR ERRORS, OMISSIONS OR OTHER INACCURACIES IN ANY WEBSITE OR ITS CONTENT, WHETHER OR NOT THERE IS NEGLIGENCE BY Carl Stahl Evita AND WHETHER OR NOT Carl Stahl Evita HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
IF YOU HAVE A CLAIM AGAINST Carl Stahl Evita THAT ARISES OUT OF THESE TERMS OF USE OR IS OTHERWISE RELATED TO THE WEBSITE, THEN IN NO EVENT SHALL THE AGGREGATE LIABILITY OF Carl Stahl Evita TO YOU BE MORE THAN THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID Carl Stahl Evita FOR SERVICES RELATED TO THE WEBSITE OVER THE PRECEDING TWELVE (12) MONTHS; OR (B) $100.
You agree to defend, indemnify and hold harmless Carl Stahl Evita and its affiliates and subsidiaries; and their respective officers, directors, owners, agents, employees, affiliates, licensees and licensors, from and against any and all claims, damages, costs and expenses, including attorneys' fees, arising from or related to your use of the Websites in violation of any of these Website Terms of Use.
This Policy, and Carl Stahl Evita's collection and use of customer information, shall be governed and interpreted in accordance with the laws of Great Britain.
Any dispute of any sort that might arise between Carl Stahl Evita and you, including without limitation any matters or disputes relating to or arising from the use of or access to any Website in connection with any purchase or use of any product, service, or information offered or made available through Carl Stahl Evita, or arising from or relating to any communication between you and Carl Stahl Evita or its agents, will be determined by binding arbitration before a single, neutral arbitrator administered in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The place of arbitration will be Rotherham in Great Britain and the arbitration will be conducted in English. Judgment on any arbitration award may be entered in any court of competent jurisdiction, and the parties intend that it will be enforceable in accordance with the Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Any claim by you with respect to any transaction must be initiated within one year after the cause of action has arisen. Carl Stahl Evita and Customer both agree that either party may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
Any translation of this Policy is done for local requirements and in the event of a dispute between the English and any non-English versions, the English version of these Terms of Use shall govern.
Your failure to comply with these Website Terms of Use automatically revokes your authorization to use the Websites and terminates all rights granted to you under the Website Terms of Use. Your obligations to Carl Stahl Evita and its affiliates and third party service providers relating to your use of a Website or products purchased on or through a Website prior to termination shall continue after termination. Restrictions regarding the Content, disclaimers and liability limitations under the Website Terms of Use shall survive termination of these Terms of Use for any reason.
We display these Websites and the Content solely to market and promote products and services in Great Britain. If any provision of these Website Terms of Use, or any portion thereof, is found to be unenforceable, it shall be enforced to the maximum extent permissible so as to affect the intent of the Website Terms of Use, and the rest of the Website Terms of Use shall remain in full force and effect. These Website Terms of Use are the entire agreement between you and Carl Stahl Evita and its affiliates and subsidiaries relating to use of or access to any of the Websites. These Website Terms of Use supersede and cancel any prior written or oral agreement between you and Carl Stahl Evita and its affiliates and subsidiaries, which shall have no further force or effect.
1.1 In these Conditions, written in 2019, the following words have the following meanings:
“the Buyer” means the person firm or company purchasing the Products from the Seller on the Conditions;
“the Conditions” means the terms and conditions set out in this document;
“the Contract” means the original quotation given by the Seller to the Buyer, together with the Order and the Seller’s acceptance thereof, on the Conditions;
“An Act of Insolvency” means in the case of an individual Buyer his becoming bankrupt or being the recipient of a statutory demand which is not satisfied within the period specified therein or applying for an interim order within the meaning of the Insolvency Act 1986 and, in the case of a corporate Buyer, means its entering into liquidation whether compulsory of voluntarily (but not for the amalgamation or reconstruction of a solvent company) or having a receiver or administrative receiver appointed or being subject to a petition for the appointment of an administrator or in both cases means entering into any arrangement with creditors or having distress or execution levied on the Buyer’s goods;
“the Order” means the written order placed by the Buyer on the Seller for the provision of the Products on the Conditions;
“the Products” means each type of ropes, pumps, lifting gear and the other items listed in the Seller’s catalogue, or as otherwise described in the Order, together with all replacements and renewals thereof, whose written Specification has previously been given to the Buyer in the Seller’s technical documentation;
“Restricted Information” means all confidential information whether written visual in media form or oral and all other confidential material supplied to or obtained by one party from the other party;
“the Seller” means Carl Stahl Evita Limited, company number 3651319, being the vendor of the Products;
“Specification” means any one or more written technical specifications relating to the Products, set out either in the Seller’s catalogue or otherwise given or available to the Buyer prior to the date of entering into any contract with the Seller on these Conditions;
1.2 In these Conditions:
1.2.1 the headings are included for convenience only and are not to be used in construction or interpretation;
1.2.2 any reference to any statute, decree, law statutory instrument or other regulation having the force of law shall be deemed to include any lawful modifications thereto or re-enactment thereof made after the date of contract;
1.2.3 any reference to the singular shall include the plural and vice versa;
1.2.4 any reference to one gender shall include all genders;
1.2.5 any reference to a person shall include natural persons, partnerships, firms, unincorporated bodies and companies and corporate bodies and all other legal persons of whatever kind and however constituted;
1.2.6 any obligation on the part of the Seller in these Conditions to provide information or data, or to carry out any mathematical calculation or otherwise, in respect of the Products shall not require it to provide any breakdown as between Products with different Specifications.
2.1 The Seller agrees to sell the Products and the Buyer agrees to purchase the Products on the Conditions.
2.2 Technical circulars, price lists and other literature other than the catalogue provided by the Seller are for the Buyer’s general guidance only and any particulars contained therein do not constitute representations by the Seller.
2.3 The Seller’s employees or agents are not authorised to make any representation concerning the Products on the Seller’s behalf unless confirmed in writing by a director of the Seller. The Buyer acknowledges by accepting delivery of the Products that it does not rely on and waives any claim for breach of any such representation which is not so confirmed.
2.4 Any order placed by the Buyer comprises an offer and is subject to acceptance by the Seller on the terms of these Conditions and if placed orally must be confirmed in writing if requested by the Seller.
2.5 All orders must be placed and are accepted upon these Conditions alone which exclude any other terms and conditions inconsistent therewith which a Buyer might seek to impose even though such other terms and conditions may be submitted in a later document or purport to exclude or supersede any conditions inconsistent with them or may be contained in any offer acceptance or counter-offer made by the Buyer.
2.6 The Seller reserves the right to make any changes in the Specification of the Products where the Products are to be supplied to the Seller’s Specification, which do not materially affect its quality or performance, without notice.
2.7 The Buyer shall be responsible for ensuring the accuracy of the terms of any Order and for giving the Seller any necessary information and documentation within sufficient time to enable the Seller to perform the Contract in accordance with its terms. No Contract may be unilaterally cancelled by either party.
3.1 The Seller shall use all reasonable endeavours to deliver the Products on time. Save as the above the Seller shall not be liable for any loss whatsoever or however arising caused by its non delivery on the due date. Time of delivery is not of the essence of contract.
3.2 The Seller reserves the right to make delivery by instalments and to tender a separate invoice in respect of each instalment.
3.3 When delivery is to be made by instalments or if the Seller exercises its right to deliver by instalments, delay in the delivery of any one or more instalments for whatever reason shall not entitle the Buyer to repudiate the Contract or to claim damages.
3.4 Where delivery is refused by the Buyer, or delivery is delayed suspended or made by instalments at the request of the Buyer, or the Seller is unable to deliver the Products by reason of circumstances beyond its control, the Seller shall, on giving notice to the Buyer of its readiness or intention to deliver, be entitled to treat the Contract as fulfilled in respect of such deliveries and may raise an invoice. The Seller shall then be entitled to place the Products into store at the expense of the Buyer, pending notification by the Buyer that it requires delivery to be made and risk shall pass to the Buyer.
3.5 Delay in delivery or delivery of any instalment shall not entitle the Buyer to retain any sums payable in respect of other deliveries or to any right of set off.
3.6 Where any one or more instalment of delivery of the Products remains outstanding for more than four weeks when due for payment the Seller shall be entitled to suspend delivery of any further instalments of the Products until payment has been received in full. Unless otherwise agreed in the Contract, risk in the Products shall pass to the Buyer upon delivery ex works.
3.7 Shortages of not more than 1% from the quantity agreed in the Contract shall be disregarded.
4.1 The price and currency of the Products shall be as stated in any quotation given by the Seller and, unless otherwise so stated, shall be:
4.1.1 exclusive of any applicable VAT (which shall be payable by the Buyer subject to receipt of an appropriate VAT invoice) and similar taxes, levies, or duties;
4.1.2 inclusive of all services and materials necessary for the satisfactory execution of the Order;
4.1.3 inclusive of the cost of basic standard packing; however, one-way reels, cases and such like are charged at cost and are non- returnable;
4.1.4 for delivery “ex works”;
4.1.5 exclusive of any insurance, delivery and transport charge, which the Buyer shall be liable to pay in addition to the price;
4.1.6 be applicable only to the Products as stated in the Order. If the agreed date for delivery is more than four months after the date of the Contract, the Seller shall be entitled (subject to clauses4.2 and 4.3) to increase the price of the Products without the consent of the Buyer by not more than 10 % of the agreed price to reflect any increase in the costs to the Seller in performing the Contract due to:
4.1.6.1 any factor beyond the control of the Seller (including without limitation any increase in the cost of components, labour, raw materials, overheads or exchange rate fluctuations),
4.1.6.2 any change in delivery dates, quantities, or Specifications for the Products arising as a result of any error or omission or changes deemed necessary by the Buyer, or
4.1.6.3 any delay or interruption in relation to the Contract not attributable to the Seller.
4.2 If in the circumstances set out in clause 4.1.6 the increase in the costs to the Seller in performing the Contract is more than 10%, the parties shall agree upon the appropriate price increase within 10 working days after the Seller´s notice of the increased price, failing which the Seller shall be entitled to cancel the Contract without any liability.
4.3 If the parties shall not have agreed a price in the Contract, the list price applicable on the delivery date shall be charged. Unless otherwise agreed in the Contract, the price for the Products shall be due and payable 30 days after date of invoice without discount. Invoices may be raised on or after the date of delivery of the Products. Time shall be of the essence in respect of such payment.
4.4 The Seller shall be entitled to charge interest at 4 per cent above the National Westminster Bank PLC base lending rate for the time being on all overdue accounts, on a daily basis from the due date for payment.
4.5 No right of set off shall exist in respect of any claims by the Buyer against the Seller unless and until such claims have either been accepted in full by the Seller in writing or judgment shall have been obtained against the Seller. The Buyer shall not be entitled to withhold all or any part of any sum which has become due for payment under the Contract.
4.6 If the Buyer fails to make any payment due to the Seller (whether under the Contract or otherwise) on the due date and/or if the Seller has knowledge of material financial difficulties of the Buyer and/or of circumstances which could reasonably and materially affect the credit status of the Buyer, the Seller shall without prejudice to any other right or remedy available to it be entitled to: invoice the Buyer without prior notice for any outstanding deliveries, or in respect of any claims it may have against the Buyer at that time; and/or require payment of all outstanding invoices in respect of any Products supplied under the Contract and of all other Products or services supplied notwithstanding that the date for payment of such invoices and work may not otherwise have fallen due, and/or suspend any other delivery of the Products, or suspend performance of any other obligation or service otherwise owed to the Buyer, pending payment in full for the Products either by cash in advance or by cash on delivery (as the Seller shall determine); and/or appropriate any payments made by the Buyer to such other orders or Products as the Seller may think fit.
4.7 The Buyer shall not be entitled to any discount for prompt payment save as agreed in writing between the parties.
5.1 The Buyer warrants that it has entered into the Contract in the course of and for the purpose of its business and that it is accordingly not to be treated as a “consumer” within the meaning of s.12 Unfair Contract Terms Act 1977.
5.2 The Seller warrants to the Buyer that the Products shall for a period of 3 months from the date of delivery conform in all material respects to the Specification. Unless otherwise agreed in writing, “in all material respects” shall in this context mean that the characteristics of the Products as delivered shall, if not in conformity with the Specification, nevertheless not significantly impair the stated use intended for the Products.
5.3 No representation or warranty or guarantee is given as to the suitability or fitness of the Products for any particular purpose and the Buyer must rely upon its own expertise and assessment for suitability for purpose.
6.1 The Buyer is relying exclusively on its own skill and judgement in relation to the Products irrespective of any knowledge which the Seller or its servants or agents may posses or any representations the Seller or its servants or agents may have made, as to the purpose for which the Products are supplied or their suitability for any stated purpose.
6.2 Notwithstanding any of the other provisions of these Conditions, nothing herein contained shall be deemed to exclude or restrict the Seller’s liability for death or personal injury resulting from negligence of the Seller or its servants or agents, nor for any act of fraud on the part of any officer of the Seller.
6.3 Clauses 6.4 to 6.6 inclusive apply only to defects:-
6.3.1 caused by faulty design, manufacture, materials or workmanship;
6.3.2 which the Buyer notifies to the Seller in writing including a statement of the alleged defect within 10 days of delivery, subject to clause 6.3.3; or
6.3.3 which the Buyer notifies to the Seller in writing within one month of delivery and within 3 days of its discovery, if the defect could not have been revealed within the time period as stated in 6.3.2 notwithstanding reasonable and careful inspection.
6.4 If any defect is discovered and notified to the Seller in accordance with clause 6.3, the Seller will in its absolute discretion either replace the defective Products with replacement Products which are in material conformity with the Specification free of charge or alternatively remedy the defect within a reasonable period of time free of charge.
6.5 If the Products have been replaced and/or remedied pursuant to clause 6.4 the replaced or remedied Products shall be warrantied for a period of 3 months from and including the date of replacement and/or remedy.
6.6 The Buyer shall at the sole discretion of the Seller:
6.6.1 either keep the allegedly defective Products in the condition in which the defect has been discovered, ready for its inspection by the Seller; or
6.6.2 have it shipped to the premises of the Seller.
6.7 The Buyer agrees that apart from those Conditions herein contained no other terms, conditions or warranties expressed or implied, statutory of otherwise, shall form part of the Contract and, in particular, the Seller shall not be liable for any consequential or indirect loss or damage suffered by the Buyer or any third party whether such loss or damage arises from breach of a duty in contract or tort or in any other way except as expressly provided by these Conditions.
6.8 The Seller’s total liability for any one claim or for the total of all claims arising from any one act or default of the Seller shall not exceed replacement or repair of the Products or at the Seller’s election the invoiced costs of the Products under the Contract. Subject to clause 6.2 above any liability of the Seller under this clause shall be nullified and extinguished in the event that:
6.8.1 the Buyer shall undertake any repairs or alterations to the Products without the prior written consent of the Seller, or wilfully or negligently damages them; or
6.8.2 the Buyer shall fail unreasonably to carefully follow any instructions of the Seller, shall disregard any attributes of the Products regarding stability or load bearing or shall misuse, abnormally use or negligently handle or otherwise neglect the Products; or
6.8.3 the Buyer shall without reasonable cause prohibit access for the Seller or its representatives to inspect and/or to remedy a defect of the Products whilst under the control of the Buyer; or
6.8.4 the Buyer shall have exposed the Products to harmful or potentially materials, substances and/or external influences, of which the Seller have not been informed by the Buyer in writing prior to the conclusion of the Contract.
7.1 At the Seller’s sole discretion and subject to clause 7.2, any request by the Buyer to return surplus or unwanted Products shall be considered by the Seller on a case by case basis and where approved, the Buyer shall be responsible for the cost of return. The Seller may charge a restocking fee under clause 7.3.
7.2 The Seller will only consider a request made pursuant to clause 7.1 where the Products are in a resalable condition and such request is made within 1 month from the date of the invoice issued by the Seller.
7.3 The Seller reserves the right to charge a restocking fee of up to 20% of the value of the Products, on any deliveries which are refused by the Buyer for any reason, except where such return is authorised by the Seller under clause 6.
8.1 Title to the Products shall remain in the Seller until full payment of all monies due from the Buyer to the Seller has been made, or until title is lawfully vested in some other person by the operation of any statute. Until title passes, the Buyer shall keep the Products free from any charge, lien or other encumbrance, and store the Products in such a way that they are easily identifiable as belonging to the Seller.
8.2 The Buyer is licensed by the Seller to use or to agree to sell the Products delivered to the Buyer subject to the express condition that the entire proceeds of any sale are held in trust for the Seller and are not mixed with other money or paid into an overdrawn bank account and shall at all times be identifiable as the Seller’s money.
8.3 Until title to the Products passes:-
8.3.1 The Buyer shall hold the Products as fiduciary agent and bailee for the Seller;
8.3.2 The Buyer shall, subject to clause 8.2, keep the Products separate and distinct from all other goods whether of the Buyer or of third parties and in good and substantial repair and condition and stored and marked in such a way as to be clearly identifiable as belonging to the Seller;
8.3.3 The Seller may by notice revoke the power of sale and use contained in clause 8.2 if the Buyer is in default for longer than 7 days in the payment of any sum due to the Seller or if the Seller has bona fide doubts as to the solvency of the Buyer;
8.3.4 The Buyer’s power of sale and use contained in clause 8.2 shall automatically cease if the Buyer commits or suffers an Act of Insolvency;
8.3.5 Upon determination of the Buyer’s power of sale and use the Buyer shall place at the Seller’s disposal any of the Products in its possession or under its control and hereby authorises the Seller to enter its premises or the premises of any other third party to recover such Products.
8.4 The Seller may whilst it remains owner of the Products (and without prejudice to any other rights it may have under or by virtue of its Contract with the Buyer) demand the immediate return of the Products at any time and the Buyer shall forthwith comply with such demand and bear the expenses for such return.
8.5 If the Buyer fails forthwith to return the Products so demanded by the Seller, the Seller or its successors in title to the Products and their respective employees and agents may enter onto the Buyer’s premises during normal working hours for the purpose of demanding the Products (the cost of doing which shall be borne by the Buyer) or may sell or otherwise deal with the Products.
8.6 The Seller may appropriate any payment made by the Buyer in settlement of such invoices as the Seller in its absolute discretion thinks fit notwithstanding any purported appropriation to the contrary.
8.7 Notwithstanding the provisions of this clause the parties agree that for accounting and taxation purposes the Products will be treated as the Buyer’s stock from the date of delivery.
9.1 Waiver
Failure of the Seller to insist in any one or more instances upon the performance of any provisions of these Conditions shall not be construed as a waiver or relinquishment of the Seller’s rights to future performance of such provision and the Buyer’s obligations in respect of such future performance shall continue in full force and effect Failure of the Seller to insist in any one or more instances upon the performance of any provisions of these Conditions shall not be construed as a waiver or relinquishment of the Seller’s rights to future performance of such provision and the Buyer’s obligations in respect of such future performance shall continue in full force and effect.
9.2 Severability
In the event that any one or more of the provisions contained in these Conditions shall for any reason be held to be unenforceable illegal or otherwise invalid in any respect under the law governing these Conditions or its performance such unenforceability illegality or invalidity shall not affect such other provisions of these Conditions and these Conditions shall then be construed as if such unenforceable illegal or invalid provisions had never been contained herein.
9.3 Whole Agreement
These Conditions together with any terms set out on the Order set forth and shall constitute the entire agreement between the parties with respect to the subject matter hereof.
9.4 Acknowledgement
Each party acknowledges that in entering into a contract on these Conditions it does not do so on the basis of and does not rely on any representation, warranty or other provision, save as expressly stated in these Conditions or otherwise agreed in writing as part of the Contract.
9.5 Variation
These Conditions may not be amended, varied or modified in any manner except by an instrument in writing signed by a director of the Seller.
9.6 No Joint Venture or Partnership or Employment
Nothing in these Conditions shall create or be deemed to create a partnership or joint venture or the relationship of employer and employee or principal and agent between the parties.
9.7 Assignment
The Buyer shall not be entitled to assign these Conditions or any of its rights or obligations nor sublicense any rights or sub- contract any obligations without the prior written consent of the Seller.
9.8 Successors
These Conditions shall be binding upon and enure for the benefit for the successors in title of the parties hereto.
9.9 Copyright
Copyright in all drawings, sketches, in all catalogues, brochures and price lists prepared by or on behalf of the Seller shall vest solely in the Seller and may only be copied or reproduced with its consent in writing.
9.10 Health and Safety at Work
The Buyer hereby gives notice to the Seller that it has available to it all information and product literature concerning the conditions necessary to ensure that the Products supplied will be as far as is reasonably practicable safe and without risk to health when properly used.
10.1 Any notice in connection with these Conditions shall be in writing and delivered personally or sent by first class prepaid post to the relevant party at the address set out in these Conditions or such other address as the recipient may have previously notified to the sender in writing in accordance with this Clause or by telex or facsimile transmission.
10.2 Proof of posting or despatch shall be deemed to be proof of receipt:
10.2.1 in the case of a letter on the second business day after posting; and
10.2.2 in the case of a telex or facsimile transmission at the time of despatch, provided that the recipient of a facsimile shall not have challenged its legibility within 24 hours of such time of despatch.
Neither party shall be liable to the other for any failure to perform or delay in performance of its obligations under the Contract caused by:-
11..1 Act of God;
11..2 Outbreak of hostilities, riot, civil disobedience or act of terrorism;
11..3 Fire, explosion or flood;
11..4 Theft, malicious damage, strike, lockout, industrial action of any kind or governmental or other regulatory constraint;
11..5 Any other reason outside the reasonable control of the parties or either of them, not being reasonable foreseeable at the time the Contract was entered into.
12.1 Except as provided by sub-clause 12.2 and 12.3 each party shall at all times during the contract and for a period of two years after its termination:
12.1.1 use its reasonable endeavours to keep all Restricted Information confidential and accordingly not disclose any Restricted Information to any other person; and
12.1.2 not use any Restricted Information for any purpose other than the performance of the obligations under the Contract;
12.2 Any Restriction Information may be disclosed by a party to:
12.2.1 any governmental or other authority or any professional or regulatory body; or
12.2.2 any of its employees; in each case to such extent only as is necessary for the purposes contemplated by the Contract, or as is required by law and subject in each case to such party using its best endeavours to ensure that the person in question keeps the same confidential and does not use the same except for the purposes for which the disclosure is made
12.3 Any Restricted Information may be used by a party for any purpose disclosed to any other person to this Agreement to the extent only that:
12.3.1 it is at the date hereof or hereafter becomes public knowledge through no fault of the party (provided that in doing so the party shall not disclose any Restricted Information which is not public knowledge); or
12.3.2 it can be shown by the party to the reasonable satisfaction of the other party to have been known to it prior to its being disclosed.
The Contract between the parties and these Conditions shall be governed by and construed in all respects in accordance with the laws of England. The parties submit to the non-exclusive jurisdiction of the English Courts
2. The project managers shall meet regularly, at periods agreed for each individual project, in order to prepare, make and record pending decisions.
2. If the parties do not agree on amendments requested by either party, the following shall apply: The customer is entitled to request changes from us until acceptance. Requests for changes must be made to us in text form or in writing. We then will review the change request. We will accept changes requested by the customer, as long as they are, within the scope of operational efficiency, not unreasonable for us. We will inform the customer within 14 days after receipt of the change request in text or written form whether
If we do not respond to the request for change within 14 days of receipt, the request for change shall be deemed rejected.
3. We observe the recognised test methods and the applicable statutory regulations in the performance of our services. If legal or other regulations change after conclusion of the contract, new regulations are introduced or result for us, for example from subsequently submitted, changed or new manufacturer documentation, factory standards or risk assessments, new or changed requirements that affect the contractual performance, and if the customer has informed us of this in good time, we will take these requirements into account if possible. Remuneration agreed in service contracts or orders for services shall be adjusted at our reasonable discretion (§ 315 BGB). In particular, we took into account expenses for changes in requirements for testing, personnel and/or new or used tools.
2. Any claim of the Customer for subsequent performance due to defects in our work performance shall be allowed to the extent permitted by law subject to the following provisions:
2.1. The Customer shall provide us with reasonable opportunity and time for any subsequent performance and in particular shall provide us with the work claimed to be defective for testing purposes.
2.2. If the delivered work is defective, we may initially choose whether we provide subsequent performance by remedying the defect (rectification) or by supplying a defect-free item (replacement delivery). The right to refuse the chosen type of subsequent performance under the conditions set down by statutory law shall not be affected hereby.
2.3. We may undertake any such subsequent performance dependent on the Customer having paid the purchase price due for payment. The Customer may, however, withhold payment of a reasonable part of the purchase price in proportion to the defect.
2.4. We shall bear the expenses necessary for the purpose of inspection and subsequent performance, in particular transport, travel, labour and material costs, provided that the alleged defect actually exists.
2.4.1. The Customer shall bear any costs of subsequent performance arising from the fact that the work has been taken to a place other than the Customer's place of business after delivery.
2.4.2. In the event that any claim for rectification of a defect by the Customer proves to be unjustified, we shall be entitled to claim reimbursement from the Customer for any resulting costs.
3. The Customer may claim damages only as follows:
3.1. For damages based on
an intentional or grossly negligent breach of duty on our part, or
an intentional or grossly negligent breach of duty by one of our legal representatives, executives or vicarious agents
which are not essential contractual obligations (cardinal obligations) and are not main or ancillary obligations in connection with defects of our goods or services.
3.2. For damages which are based on the intentional or negligent breach of essential contractual obligations (cardinal obligations) on our part, on the part of one of our legal representatives, executive employees or vicarious agents. Essential contractual obligations (cardinal obligations) within the meaning of the above subsections 3.1 and 3.2 are obligations the fulfilment of which is essential for the proper execution of the contract and on the observance of which the Customer regularly relies.
3.3. Furthermore, we shall be liable for damages due to negligent or intentional breach of duties in connection with defects or work performance (subsequent performance or ancillary duties), and
3.4. for damages which fall within the scope of protection of a guarantee (assurance) expressly given by us or a guarantee of quality or durability.
4. In the event of a breach of an essential contractual obligation involving slight negligence, liability shall be limited in amount to the damage typically to be expected and foreseeable for us at the time of conclusion of the contract if due care is taken.
5. Any claim for damages on the part of the Customer in case of a breach of an essential contractual obligation involving slight negligence shall expire one year from the limitation period starting to run under the of the statute of limitations. Excluded from this shall be any damage or injury in relation to life, personal injury or injury to health.
6. Any rights to claim for damages against us arising from mandatory liability at law, for example under the Product Liability Act, as well as in relation to injury to life, body or health shall remain unaffected by the above provisions and shall continue to exist to the statutory extent required within the statutory periods.