Terms and Conditions
Eozone Ltd t/a Aquaozone (Supplier)
Incorporated and registered in England and Wales with company number 8278741.
Registered office address: Pioneer House, 9 Bond Avenue, Bletchley, Milton Keynes, MK1 1SW, United Kingdom.
The Customer’s attention is particularly drawn to the provisions of clause 12.
Definitions. In these Conditions, the following definitions apply: Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business. Conditions: these terms and conditions as amended from time to time in accordance with clause 2.2. Sale Contract: the contract between the Supplier and the Customer for the supply of Goods in accordance with these Conditions. Customer: the person or firm who purchases the Goods and/or Services from the Supplier. Expenses: any out-of-pocket costs incurred by the Supplier in fulfilling an Order or a Service, including (without limitation) (a) postage, packaging, carriage, freight, and handling charges (b) insurance (c) currency conversion and banking charges applicable to the payment method used (d) value added tax or any other applicable sales tax in the country in which the Supplier is resident (e) any customs, import or other duties charged in respect of the sale and importation of Goods into the country in which the Customer is resident or the Delivery Point is located (f) cost of services provided by third parties if required by the Supplier for the performance of the Services (g) the cost of any materials, and (h) travel, hotel and subsistence. Goods: the goods (or any part of them) set out in the Order which terms shall include a reference to Deliverables where the context allows. Goods Specification: any specification for the Goods including any relevant plans or drawings that is agreed in writing by the Customer and the Supplier and incorporated by reference to an Order. Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. Order: the Customer’s order for the supply of the Services as set out the Customer’s purchase order form as accepted in writing by the Supplier or the Customer’s written acceptance of the Supplier’s quotation as the case may be.
Construction. In these Conditions, the following rules apply: (a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) (b) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted (c) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms, and (d) a reference to writing or written includes faxes and e-mails.
Basis of contract
The Order constitutes an offer by the Customer to purchase Goods in accordance with these Conditions.
The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point the Sale Contract shall come into existence. No variation of the Sale Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.
The Sale Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Sale Contract.
Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of services contained in the Supplier’s website, catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods or services described in them. They shall not form part of the Sale Contract or have any contractual force.
These Conditions apply to the Sale Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of THIRTY days for Customers located in the UK and for SIXTY days for other Customers from its date of issue.
The Goods are described in the Supplier’s website, catalogue or brochure as modified by any applicable Goods Specification.
To the extent that the Goods are to be manufactured in accordance with a Goods Specification supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with the Supplier’s use of the Goods Specification. This clause 3.2 shall survive termination of the Sale Contract.
The Supplier reserves the right to amend the specification of the Goods or Goods Specification if required by any applicable statutory or regulatory requirements before delivery and the Supplier shall notify the Customer in any such event.
All manuals, documentation, Human Machine Interface (HMI) and training will be supplied in the English language and any errors arising in translation to another language shall be at the sole risk of the Customer.
The Customer is responsible for obtaining, at its own cost, such import licences and other consents in relation to the Goods as are required from time to time and, if required by the Supplier, the Customer shall make those licences and consents available to the Supplier prior to the relevant shipment.
Delivery of Goods
The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
The Supplier shall deliver the Goods to the Delivery Location which shall have the following meanings. Where the Goods are to be delivered on mainland Great Britain the location shall be that set out in the Order, or such other location as the parties may agree in writing. If not on mainland Great Britain the Delivery Location shall be dockside or air side at the seaport or airport stated in the Supplier’s acceptance of Order or if not so stated it shall be such seaport or airport in the relevant region or country associated with the Customer as nominated by the Supplier. Acceptance of any change to the Delivery Location requested by the Customer shall be at the Supplier’s sole discretion and the Customer shall be liable for any additional Expenses incurred by the Supplier as a result of such change. Delivery of the Goods shall be completed on unloading of the Goods at the Delivery Location. .
The Supplier may effect delivery of the Goods at any time after it notifies the Customer in writing of its readiness and intention to effect delivery provided it has given the Customer at least the minimum period of notice in advance of the anticipated day of delivery (Delivery Notice). Where the Delivery Location is on mainland Great Britain the minimum period of the Delivery Notice shall be THREE Business Days and if it is elsewhere the minimum period of the Delivery Notice shall be SIX Business Days.
Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence unless stipulated in a bankers letter of credit used by the Customer. The Supplier shall not in any case be liable for a delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
Quality of Goods
The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Goods shall: (a) conform in all material respects with their description and any applicable Goods Specification (b) be free from material defects in design, material and workmanship (c) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979), and (d) be fit for any purpose stated by the Supplier.
Subject to clause 6.3, if: (a) the Customer gives notice in writing during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1, (b) the Supplier is given a reasonable opportunity of examining such Goods, and (c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost then the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 6.1 if: (a) the Customer makes any further use of such Goods after giving a notice in accordance with clause 6.2, (b) the defect or damage arises because of the manner or event occurring during the transportation of the Goods by the Customer from the Delivery Location to its place of business or during their installation (c) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or good trade practice (d) the defect arises as a result of the Supplier following any drawing, design or Goods Specification supplied by the Customer (e) the Customer alters or repairs such Goods without the written consent of the Supplier (f) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions, or (g) the Goods differ from their description or Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 6.1.
The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 6.2.
Title and risk
The risk in the Goods shall pass to the Customer on completion of delivery at the Delivery Location.
Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cash or cleared funds) for the Goods.
Until title to the Goods has passed to the Customer, the Customer shall (a) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods (c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier’s behalf from the date of delivery, and (d) give the Supplier such information relating to the Goods as the Supplier may require from time to time.
If before title to the Goods passes to the Customer the Supplier terminates the Sale Contract then, without limiting any other right or remedy the Supplier may have: (a) the Customer’s right to use them in the ordinary course of its business and in any other way ceases immediately (b) the Supplier shall cease to be obliged to make any further sales or deliveries pursuant to outstanding Contracts, and (c) the Supplier may at any time (I) require the Customer to deliver up all Goods in its possession and (II) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
The Customer shall: (a) ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification are complete and accurate (b) co-operate with the Supplier in all matters (c) provide the Supplier with such information and materials as the Supplier may reasonably require to supply the Goods and any associated services, and to ensure that such information is accurate in all material respects.
Charges and payment
The price for Goods shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier’s published price list as at the date of delivery. The price of the Goods is exclusive of all Expenses which shall be paid by the Customer when it pays for the Goods.
Amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Sale Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods/Services at the same time as payment is due for the supply of the Goods/Services.
The Supplier reserves the right to increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to (I) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification (II) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
Unless otherwise agreed in writing by the Supplier in relation to a particular contract the Customer shall pay (a) 40% of the price for the Goods within 14 days of acceptance by Supplier of the Order subject only to prior provision of invoice; the Supplier shall be under no obligation to commence work on an Order accepted by it notwithstanding any time stipulation as to delivery until such payment has been received by the Supplier in full together with any attendant Expenses and (b) the balance of the price for the Goods and any remaining or additional Expenses in full before despatch of the Goods by Supplier; the Supplier shall be under no obligation to commence delivery until such payment has been received.
Where the Supplier in its discretion agrees to accept payment of the price of the Goods (or the balance thereof following receipt of a deposit and or instalments) by means of letter of credit or other instrument the Supplier shall be under no obligation to commence work or to continue to work on an Order accepted by it notwithstanding any time stipulation as to delivery until the Supplier has confirmed in writing to the Customer that the Supplier is satisfied as to the identity of the issuer of the instrument, the sum payable thereunder and the terms and conditions for payment. Where the Supplier is unable to satisfy itself as to such matters the Customer’s obligations to purchase the Goods and to pay for them shall remain unaffected.
The Customer shall pay each invoice submitted by the Supplier: (a) in UK sterling or other currency stated in the Order as accepted by the Supplier (b) subject to clause 9.2, within THIRTY days of the date of the invoice, and (c) in full and in cleared funds to a bank account nominated in writing by the Supplier. Time for payment shall be of the essence of the Sale Contract.
All amounts payable by the Customer for Goods are exclusive of Expenses chargeable from time to time which the Customer shall pay to or reimburse the Supplier in addition. If the Customer is required under any applicable law to withhold or deduct any amount from the payments due to the Supplier, the Customer shall increase the sum it pays to the Supplier by the amount necessary to leave the Supplier with an amount equal to the sum it would have received if no such withholdings or deductions had been made. Where bank or similar charges associated with payment are made or deducted the Customer shall reimburse the Supplier or increase the amount paid so that the net sum received or receivable by the Supplier corresponds in full to the invoiced sum.
If the Customer fails to make any payment due to the Supplier under the Sale Contract by the due date for payment, then the Customer shall pay interest in UK sterling on the overdue amount at the rate of FOUR percent per annum above Lloyds Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
The Customer shall pay all amounts due under the Sale Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
Intellectual property rights
All Intellectual Property Rights in or arising out of or in connection with the performance of the Sale Contract shall be owned by the Supplier. The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Goods or provision of any associated services, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
The Customer acknowledges that (a) the Intellectual Property Rights are the Supplier’s (or its licensor’s) property (b) nothing in this agreement shall be construed as conferring any licence or granting any rights in favour of the Customer in relation to the Intellectual Property Rights. The Supplier asserts its full rights to control the use of its trademarks throughout the world and the Customer shall assist the Supplier as required in preventing parallel importers to the country of the Customer from diluting the Supplier’s rights, and (c) any reputation in any trademarks affixed or applied to the Goods shall accrue to the sole benefit of the Supplier or any other owner of the trade marks from time to time.
The Customer shall not repackage the Goods and/or remove any copyright notices, confidential or proprietary legends or identification from the Goods.
The Customer shall not use or seek to register any trade mark or trade name (including any company name) which is identical to, confusingly similar to or incorporates any trade mark or trade name which the Supplier owns or claims rights in anywhere in the world.
If at any time it is alleged that the Goods infringe the rights of any third party or if, in the Supplier’s reasonable opinion, such an allegation is likely to be made, the Supplier may at its option and its own cost (a) modify or replace the Goods without reducing the overall performance of the Goods in order to avoid the infringement or (b) procure for the Customer the right to continue using the Goods or (c) repurchase the Goods at the price paid by the Customer, less depreciation at the rate the Supplier applies to its own equipment.
The Customer shall promptly and fully notify the Supplier of (a) any actual, threatened or suspected infringement of any Intellectual Property Rights which comes to the Customer’s notice, and (b) any claim by any third party that comes to the Customer’s notice that the sale or advertisement of the Goods infringes the rights of any person.
The Customer agrees (at the Supplier’s request and expense) to do all such things as may be reasonably required to assist the Supplier in taking or resisting any proceedings in relation to any infringement or claim referred to in clause 10.6.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Sale Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Sale Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. The Supplier may use findings relating to performance and design arising within the provision of Services in its manufacturing, in providing Services to other customers and for publication as or within research findings. This clause 11 shall survive termination of the Sale Contract.
Limitation of liability:
THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
Nothing in these Conditions shall limit or exclude the Supplier’s liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (b) fraud or fraudulent misrepresentation (c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) (d) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession) or (e) defective products under the Consumer Protection Act 1987.
Subject to clause 13.1: (a) the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss or damage arising under or in connection with the Sale Contract even if the Supplier is advised in advance of the possibility of any such loss or damage, and the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Sale Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid or payable for the Goods.
The Supplier shall not be liable for any loss or damage arising from any of the matters referred to in clause 6.3.
The Customer acknowledges and agrees that the price of the Goods reflect the limitations of liability contained in the Sale Contract.
The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and the terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Sale Contract.
This clause 12 and the provisions of clause 6 shall survive termination of the Sale Contract.
Waiver of rights based on misrepresentation
Each party unconditionally waives any rights it may have to claim damages against the other on the basis of any oral or written statement made by the other or by its legal advisers (whether made carelessly or not) that is not set out or referred to in the Sale Contract (or for breach of any warranty given by the other not so set out or referred to), unless such statement or warranty was made or given fraudulently.
Each party unconditionally waives any rights it may have to seek to rescind the Sale Contract on the basis of any statement made by the other (whether made carelessly or not), unless such statement was made fraudulently.
Without limiting its other rights or remedies, the Supplier may terminate the Sale Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.
Without limiting its other rights or remedies, the Supplier may suspend all further deliveries of Goods under the Sale Contract or any other contract between the Customer and the Supplier pending full payment in advance if the Customer fails to pay any amount due under Sale Contract on the due date for payment or the Supplier reasonably believes that the Customer is or may become unable to pay.
On termination of the Sale Contract for any reason: (a) the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest (b) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Sale Contract which existed at or before the date of termination or expiry, and (c) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
For the purposes of the Sale Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network or provider, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors. The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event. If the Force Majeure Event prevents the Supplier from providing any of the Goods for more than TWENTY FOUR weeks, either party shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the other.
Assignment, agency and third parties:
The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge or deal in any other similar manner with the Sale Contract or its rights or any part of them under the Sale Contract, subcontract any or all of its obligations under the Sale Contract, or purport to do any of the same. Neither party shall have authority to act as agent for, or to bind, the other party in any way. A person who is not a party to the Sale Contract shall not have any rights to enforce its terms.
The language of the Sale Contract shall be English. If the Sale Contract or any part of it is translated into any other language, the English language version shall prevail. Any other document or notice and any communication given under or in connection with the Sale Contract shall be in the English language or accompanied by a certified English translation. If such document notice or communication is created in or translated into a language other than English, the English language version shall prevail.
(a) Any notice or other communication given to a party under or in connection with the Sale Contract may be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and may be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier or fax. (b) A notice or other communication if so formed and sent shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 16.2(a); if sent by pre-paid first class post or other next working day delivery service, at 11.00 am on the SECOND Business Day following the date of posting if to an address in the UK or if otherwise the FOURTH Business Day after posting ; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax, one Business Day after transmission. (c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
The Sale Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. For the avoidance of doubt, the United Nations Convention on the International Sale of Goods shall not apply to the Sale Contract. The international rules for the interpretation of trade terms prepared by the International Chamber of Commerce (Incoterms) shall apply but where they conflict with the Sale Contract, the Sale Contract shall prevail.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).