Terms & Conditions of Sale

1. About these terms and conditions of sale

1.1 These terms and conditions (Terms) will apply to (and be incorporated into) any contract between us (Contract) for the sale of products (Products). By placing an order with us, you agree to deal with us on these terms, to the exclusion of all other terms, conditions, warranties or representations (including any terms or conditions on which you purport to accept the quotation or to apply under any purchase order, confirmation of order or any other document).

1.2 References in these Terms to we, us and our are to whichever of Electric Systems Limited (registered in England with number 05686543) and/or Electric Systems Logistics Limited (registered in England with number 12829518) and/or their respective subsidiaries with whom you enter into a Contract.

1.3 We reserve the right to change these Terms without notice. You are responsible for reviewing these Terms prior to making any purchase from us. No other variation to these Terms shall be binding unless agreed in writing by us.

1.4 Due to the nature of the internet, our website is accessible worldwide. However, our Products are only available to businesses (i.e. not consumers) and not all of our Products are available to all persons or in all geographic locations. Accordingly, we reserve the right to limit the provision of our Products to any person, geographic area and/or jurisdiction.

2. Basis of sale

2.1 Our employees or agents are not authorised to make any representations concerning the Products unless confirmed by us in writing. In entering into a Contract, you acknowledge that you do not rely on, and unconditionally waive any right you may have to claim damages for and/or to rescind the Contract as a result of, any statements, promises or representations (other than fraudulent misrepresentations) not contained in these Terms or the Quotation or which are not otherwise confirmed by us in writing.

2.2 Any advice or recommendation given by our employees or agents as to the storage, application or use of the Products which is not confirmed in writing by us is followed or acted on entirely at your own risk, and we shall not be liable for any such advice or recommendation which is not so confirmed.

2.3 Any typographical, clerical or other error or omission in any sales literature, website, quotation, price list, acceptance of offer, invoice or other document or information issued by us shall be subject to correction without any liability on our part.

3. Orders

3.1 Any quotation we issue to you (Quotation) is valid for the period stated in the Quotation or such shorter period as we may at the time specify (unless we have previously withdrawn it).

3.2 You are responsible for ensuring the completeness and accuracy of the terms of any Quotation and/or order.

3.3 Each order placed shall be deemed to be an offer by you to purchase the Products subject to these Terms. No order submitted by you, or acceptance by you of a Quotation, shall be deemed to be accepted by us until we have confirmed the order in writing.

3.4 All samples, drawings, descriptive matter, specifications and advertising issued by us, and any descriptions or illustrations or images of the Products on our website and in any documentation are for illustrative purposes only and for the sole purpose of giving an approximate idea of the Products.

3.5 You are responsible for ensuring the completeness and accuracy of the terms of any Quotation and/or order. Whilst we will endeavour to provide you with assistance and advice (if requested) relating to which products to purchase, all information or advice provided by us is, and is intended to be, general in nature and you should not rely on it in connection with the making of any decision. We do not guarantee the accuracy of such information and we will not be liable for any loss or damage suffered by you as a result of relying on such information or advice.

3.6 We reserve the right to make any changes in the specification of the Products which are required to conform with any applicable law or regulation or other legal requirements, and/or to the extent the relevant manufacturer of the Products does the same, provided only that such amendment, modification or change does not materially detract from the overall quality or performance of the Products.

3.7 Once an order is placed with and accepted by us, you may not cancel the order (in whole or in part), unless we agree otherwise in writing. If we do agree to an order being cancelled, you shall reimburse us for any cost we incur as a result of such cancellation (including, without limitation, cancellation and/or restocking fees).

3.8 We may terminate a Contract forthwith by notice in writing to you if:

(a) you make any voluntary arrangement with your creditors or become subject to an administration order or (being an individual or firm) become bankrupt or (being a company) go into liquidation;

(b) you present a winding up petition or have a winding up petition presented against you or have a winding up order made against you or a provisional liquidator is appointed; or

(d) you cease, or threaten to cease, to carry on business, or

(e) we (acting reasonably) believe that any of the events mentioned above are about to occur in relation to you; or

(f) any event analogous to those described in this clause occur in relation to you in any jurisdiction in which you are incorporated, resident or carry on business. If we terminate the Contract pursuant to this clause then, without prejudice to any other right or remedy available to us, we shall be entitled to stop any Products in transit and/or suspend any further deliveries under the Contract without any liability to you, and if the Products have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

4. Price of products and payment terms

4.1 The prices of the Products will be as set out in on the Quotation.

4.2 The price of the Products includes delivery charges unless otherwise specifically provided for in the Quotation. However, if you order Products for delivery to a destination outside of the United Kingdom, all import licenses, duties, tariffs, taxes and brokerage fees will be your responsibility and liability.

4.3 The price of Products excludes any value-added or sales taxes, or any other taxes or charges imposed by any government authority, including, without limitation, use, excise, federal, state, local or similar taxes.

4.4 Unless we have agreed otherwise in writing, payment for all Products must be made in the currency indicated on the Quotation in cleared funds within 30 calendar days of the date of invoice.

4.5 You shall make payment of all amounts due under the Contract free from any right of set-off, counterclaim, withholding or deduction of any kind. We may withhold or suspend the Products and/or cancel the Contract between us if payment is not received from you in full in cleared funds.

4.6 If you fail to make any payment on the due date then, without prejudice to any other right or remedy available to us, we shall be entitled to:

(a) cancel any Contract with you and/or suspend any further deliveries to you;

(b) declare that all unpaid balances owing to us from you shall become immediately due and payable, regardless of previously agreed payment terms;

(d) charge the Buyer interest (both before and after any judgment) on the amount unpaid at the rate of 4% per cent per annum above National Westminster Bank plc base rate from time to time (or, if higher, the rate payable under the Late Payment of Commercial Debts (Interest) Act 1988) until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

4.7 If we agree to give you credit, we may set such credit limit, and may also vary any credit limit, as we deem appropriate from time to time. We reserve the right, at our discretion and without prior written notice, to immediately terminate or suspend availability of the credit account if:

(a) you fail to make payment of any sum whatsoever due to us on the relevant due date;

(b) we, acting reasonably, have bona fide doubts as to your solvency; and/or

(d) any other circumstances arise which, in our view, suggest it would be prudent to do so, and, in each case, all amounts outstanding from you to us will become immediately due and payable.

5. Delivery

5.1 We shall use our reasonable endeavours to fulfil your order within the delivery period detailed on the Quotation provided always that any dates given are estimates only and time for delivery shall not be of the essence.

5.2 Unless otherwise expressly provided in the Quotation, all deliveries are made DAP (Incoterms 2020).

5.3 Delivery will be completed when we deliver the Products to the address you gave us for delivery (the Delivery Address). You will be responsible for unloading the Products at the Delivery Address and you will be responsible for the Products when they are delivered to you.

5.4 You must notify us of any shortfall in the quantities of Products delivered within 48 hours from the time of delivery, failing which we shall have no liability in respect of any such shortfall claim.

5.5 If you fail to accept delivery of the Products, we will be entitled to charge you for all related costs and expenses (including insurance) associated with storing the Products until delivery takes place. If 14 calendar days after the date on which we notified you that the Products were ready for delivery you have not accepted delivery of the Products, we may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to you for any excess over the price of the Products or charge you for any shortfall below the price of the Products.

5.6 If you order Products for delivery to a destination outside of the United Kingdom, you shall be responsible for complying with any legislation or regulations governing the importation of the Products into the country of destination and for the payment of any duties thereon and for complying with export control legislation and, if applicable, re-export control legislation. Where applicable, you agree to provide in a timely manner all necessary support documentation required by us to apply for the approval of local government authorities to permit the exportation, re-exportation, transfer or sale of Products to you. We shall have no liability or obligation to you if the relevant government declines to issue such approval or if approvals are not issued in a timely manner. You are solely responsible for the import of the Products into its intended country of destination and for the payment of all import duties, taxes and fees applicable to those Products.

6. Risk and property

6.1 For all sales where the Delivery Address is in the United Kingdom or Europe, risk of damage to, or loss of, the Products shall pass to you when we deliver the Products to the Delivery Address (and, if the Delivery Address is our premises, this will be at the time when we notify you that the Products are available for collection). For all sales where the Delivery Address is outside of the United Kingdom or Europe, risk of damage to, or loss of, the Products shall pass to you immediately upon delivery to the carrier at the shipping point.

6.2 Notwithstanding delivery and the passing of risk in the Products, you will not own the Products (and legal title shall not pass to you) until we have received (in cash or cleared funds) payment in full of the price of the Products (plus any sales and other taxes and delivery charges); and (b) all other sums which are or which become due to us from you on any account.

6.3 Until such time as legal title in the Products passes to you, you shall:

(a) hold the Products as our fiduciary agent and bailee and shall accordingly remain liable to account to us for the Products;

(b) identify the Products as our property;

(d) protect and maintain the Products in satisfactory condition and keep them insured on our behalf for their full price against all risks to our reasonable satisfaction.

6.4 Subject to clause 6.2, you shall be entitled to resell or use the Products in the ordinary course of your business but such right shall terminate immediately if:

(a) you fail to make payment of any sum whatsoever due to us on the relevant due date;

(b) we, acting reasonably, notify you in writing that we have bona fide doubts as to your solvency; and/or

6.5 Where we are unable to determine whether any Products are the Products in respect of which your right to possession has terminated, you shall be deemed to have sold all Products in the order in which they were invoiced to you.

6.6 Until such time as title in the Products passes to you, we shall be entitled at any time to require you to deliver-up the Products to us and, if you fail to do so, we, our agents and/or employees, may forthwith enter upon any of your premises and/or the premises of any third party where the Products are, and repossess the Products. If the Products have been incorporated into any property within your control, we may dismantle the Products or detach them from any items and you shall be liable to us for all costs incurred in so doing and for any diminution in the value of the Products suffered by us, or loss of profit on the resale of the Products.

6.7 You shall not be entitled to encumber or in any way charge any of the Products in which legal title remains vested in us. If you do so, all monies owing by you to us shall (without prejudice to any other right or remedy of ours) forthwith become due and payable.

7. Warranty

7.1 EXCEPT AS EXPRESSLY STATED IN THESE TERMS OR ANY CONTRACT, WE DO NOT GIVE WARRANTIES, REPRESENTATIONS OR UNDERTAKINGS IN RELATION TO ANY PRODUCT(S). SAVE AS SET OUT IN THESE TERMS, ALL WARRANTIES, CONDITIONS, REPRESENTATIONS AND OTHER TERMS IMPLIED BY LAW (WHETHER BY STATUTE, COMMON LAW OR OTHERWISE) ARE EXCLUDED (TO THE FULLEST EXTENT PERMITTED BY LAW) FROM THESE TERMS AND FROM ANY CONTRACT.

7.2 We are not a manufacturer of the Products and have no input on the design of Products. Accordingly:

7.2.1 you shall only be entitled to the benefit of any product warranty, guarantee, repair and/or return policy to the extent provided by the relevant manufacturer save that, in the event that the sale is made in the United States of America and the manufacturer’s warranty is not valid (and such invalidity is not caused in whole or in part by an act or omission of yours) we shall provide you with an identical product warranty or guarantee to that which would have been provided by the relevant manufacturer had it been valid;7.2.2 we do not give any warranty or representation, and it is not a condition of the Contract, that:

(a) the Products have been sold to you with the consent of the brand owner, or that the owner of any Intellectual Property Rights in or relating to the Products has consented to their import or export; and/ or

(b) the manufacturer of the Products will comply with any guarantee which the manufacturer generally makes available; and/or

(c) the design, manufacture, use and/or sale of the Products does not infringe the Intellectual Property Rights of a third party;

7.2.3 we will not be responsible for ensuring that the Products are suitable for your purposes;

7.2.4 we will use our reasonable endeavours to supply Products which are genuine but, in the unlikely event that any Products are found to be counterfeit, we shall be entitled (at our sole discretion) to either:

(a) replace the Product free of charge; or

(b) refund to you the price of the Product (or a proportionate part of the price), and we shall have no further liability to you whether under contract, tort or otherwise.

7.3 No warranty shall apply to any defect in the Products arising or resulting from:

(a) fair wear and tear;

(b) the location in which the Products are used or are to be used or for the method of installation;

(d) abnormal storage or working conditions;

(e) improper use of the Products;

(f) failure to use the Products in accordance with the manufacturer’s instructions and/or guidance;

(g) failure to keep the Products regularly cleaned and maintained;

(h) the use of the Products with any third party components;

(i) storm, flood, unusually strong winds or other events of nature; and

(j) any unauthorised and/or third party interference with the Products.

7.4 Any warranty given is extended only to the first end-user of the Products and is not transferable.

7.5 We do not give any warranty that the Products shall be suitable for any particular purpose for which you intend to use them save where we have expressly accepted responsibility for such suitability in writing.

7.6 If there is any defect with the Products which you consider we will be liable for under warranty, you agree that you will tell us as soon as reasonably possible and will follow the process required by the relevant manufacturer’s returns process from time to time.

8. Our liability

8.1 SUBJECT TO CLAUSE 8.4, OUR MAXIMUM AGGREGATE LIABILITY WILL BE LIMITED TO THE PURCHASE PRICE FOR THE PRODUCTS WHICH ARE THE SUBJECT OF ANY CLAIM.

8.2 SUBJECT TO CLAUSE 8.4, IN NO EVENT WILL WE HAVE ANY LIABILITY TO YOU, OR ANY THIRD PARTY, FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION:

(A) LOSS OF PROFITS;

(B) LOSS OF SALES,REVENUE, PRODUCTION OR BUSINESS;

(D) LOSS OF ANTICIPATED SAVINGS OR MARGIN;

(E) LOSS OF BARGAIN;

(F) LIABILITY OF YOU TO THIRD PARTIES;

(G) LOSS OF USE, OR VALUE OF, ANY DATA OR SOFTWARE;

(H) WASTED MANAGEMENT, OPERATIONAL OR OTHER TIME; OR

(I) ANY OTHER INDIRECT, CONSEQUENTIAL OR SPECIAL LOSS, AND IN EACH CASE (FOR (A) – I) INCLUSIVE) WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL.

8.3 References to liability in this clause 8 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

8.4 Nothing in these Terms will operate to exclude or restrict our liability for:

(a) death or personal injury resulting from our negligence;

(b) fraud or fraudulent misrepresentation; or

8.5 In addition to any obligation to mitigate loss or damage which may exist at common law, you must use your reasonable endeavours to mitigate the consequences of any breach by us and the losses, costs, expenses and demands you may claim as a result of that breach.

8.6 The exclusions from, and limitations of, liability set out in this clause 8 will be considered severally. The invalidity or unenforceability of any one sub-clause or clause will not affect the validity or enforceability of any other sub-clause or clause and will be considered severable from each other.

8.7 Notwithstanding any other term of these Terms or the Contract we will not be in breach of the Contract to the extent our failure to perform or delay or defect in performance of our obligations under the Contract arises as a result of:

(a) any breach by you of your obligations contained in the Contract;

(b) us relying on any incomplete or inaccurate data provided by you or a third party; or

9. Events outside our control

9.1 We will not be liable for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused (directly or indirectly) by an event outside our control. An event outside our control means any act or event beyond our reasonable control, including (without limitation) acts of God, weather, flood, earthquake, storm, subsidence or other natural (or epidemic) disaster, pandemic (including a coronavirus), any law or any action taken by a government or public authority, fire, explosion, accident, strikes, lock-outs or other industrial action by third parties, civil commotion, riot, terrorist attack or threat of terrorist attack or war or threat or preparation for war.

9.2 If an event outside our control takes place that affects the performance of our obligations, our obligations will be suspended and the time for performance of our obligations will be extended for the duration of the event outside our control.

10. Other important terms

10.1 We may transfer our rights and obligations under a Contract to another organisation. You may only transfer your rights or your obligations under these Terms to another person if we agree in writing.

10.2 The Contract is between you and us. No other person shall have any rights to enforce any of its terms.

10.3 Each of the clauses of these Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining clauses will remain in full force and effect.

10.4 If we do not insist that you perform any of your obligations under the Contract or if we do not enforce our rights or remedies against you, or if we delay in doing so, that will not mean that we have waived our rights or remedies against you and will not mean that you do not have to comply with those obligations. If we do waive any rights or remedies, we will only do so in writing, and that will not mean that we will automatically waive any right or remedy related to any later default by you.

11. Law and jurisdiction

11.1 These Terms are governed by English law. This means a Contract for the purchase of Products, and any dispute or claim arising out of or in connection with it, will be governed by English law without regard to the conflicts of laws principles.

11.2 You and we both agree that the courts of England will have exclusive jurisdiction provided always that nothing in these Terms will prevent us from taking proceedings against you (whether concurrently or not) in any other court of competent jurisdiction wherever in the world.

11.3 The United Nations Convention on Contracts for the International Sales of Products shall not apply (or otherwise have any legal effect with respect) to the Contract and/or these Terms and/or any transactions relating to the sale of Products.

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