Delsys Europe Ltd

Terms and Conditions of Sale

The customer’s attention is drawn in particular to the provisions of clause 9.

1. Interpretation

1.1 Definitions

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.4.

Configuration: any specification or configuration for the Goods, including any related drawings or schematics.

Contract: the contract between Delsys and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: the person or firm who purchases the Goods from Delsys.

Delivery Location: has the meaning given in clause 4.2.

Delsys: Delsys Europe Ltd (registered in England and Wales with company number 09212352).

Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control including, but not limited to acts of God, flood, drought, earthquake or natural disaster, epidemic or pandemic, terrorist attack, civil war, civil commotion, imposition of sanctions, nuclear, chemical or biological contamination, any law or any action taken by government or public authority, fire, explosion or accident.

Goods: the goods (or any part of them) set out in the Order.

Incoterms: means the Incoterms 2020 rules produced by the International Chamber of Commence.

Intellectual Property Rights: means patents, rights to inventions, copyright and related rights, trade marks, trade names, rights to use domain names, rights in get up, goodwill and the right to sue for passing off and unfair competition, rights and designs, rights in computer software, database rights, rights to use and preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or 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 Goods, as set out in the Customer’s purchase order form.

1.2 Interpretation:

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b) A reference to a party includes its successors and permitted assigns.

(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

(e) A reference to writing or written includes email.

2. Basis of contract

2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.

2.2 A quotation for the Goods given by Delsys shall not constitute an offer. A quotation shall only be valid for a period of 90 calendar days from its date of issue.

2.3 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Configuration are complete and accurate.

2.4 The Order shall only be deemed to be accepted when Delsys issues a written acceptance or acknowledgment of the Order, at which point the Contract shall come into existence.

2.5 Any drawings, descriptive matter or advertising produced by Delsys and any descriptions or illustrations contained in Delsys’ website, social media, catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.

3. Goods

3.1 The Goods are described in Delsys’ website, catalogue or brochures (as the case may be) as modified by any applicable Configuration.

3.2 Delsys reserves the right to amend the specification of the Goods or the Configuration if required by any applicable statutory or regulatory requirement, and Delsys shall notify the Customer in any such event.

4. Delivery

4.1 Delsys shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the purchase order number, the type and quantity of the Goods, and special storage instructions (if any).

4.2 Delsys shall deliver the Goods in accordance with the Delivered At Place (DAP) rule (as defined in the Incoterms) to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after Delsys notifies the Customer that the Goods are ready.

4.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location.

4.4 The shipment date will be confirmed by Delsys in its order acknowledgment but any dates quoted for delivery (whether in such order acknowledgment or otherwise are approximate only and dependent on the timescales and activities of the courier, and the time of delivery is not of the essence. Delsys shall not be liable for any delay in delivery of the Goods that is caused due to any deposit referred to in clause 7.3 not being paid on time, by a Force Majeure Event, or the Customer’s failure to provide Delsys with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.5 If Delsys fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. Delsys shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Delsys with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.6 If the Customer fails to take delivery of the Goods within five Business Days of Delsys notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or Delsys’s failure to comply with its obligations under the Contract in respect of the Goods:

(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Delsys notified the Customer that the Goods were ready; and

(b) Delsys shall receive the Goods from the courier and store the Goods until redelivery takes place, and charge the Customer for all related costs and expenses (including insurance and any redelivery charges).

4.7 If ten Business Days after the day on which Delsys notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, Delsys may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.

5. Quality

5.1 Delsys warrants that on delivery, and for a period of 24 months from the date of the Contract (warranty period), the Goods shall:

(a) conform in all material respects with their description;

(b) be free from material defects in design, material and workmanship; and

5.2 Subject to clause 5.3, if:

(a) the Customer gives notice in writing to Delsys 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 5.11;

(b) Delsys is given a reasonable opportunity of examining such Goods; and

Delsys shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

5.3 Delsys shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1:

(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;

(b) the defect arises because the Customer failed to follow Delsys’s oral or written instructions as to the storage, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

(d) the defect arises as a result of fair wear and tear (which, in the case of batteries, shall include natural reductions in their capacity or ability to hold a charge), wilful damage, negligence, or abnormal storage or working conditions; or

(e) the Goods differ from their description or any Configuration as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

5.4 Except as provided in this clause 5, Delsys shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.

5.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.

5.6 These Conditions shall apply to any repaired or replacement Goods supplied by Delsys.

6. Title and Risk

6.1 The risk in the Goods shall pass to the Customer on completion of delivery.

6.2 Title to the Goods shall not pass to the Customer until the earlier of Delsys receives payment in full (in cash or cleared funds) for the Goods and any other goods that Delsys has supplied to the Customer, in which case title to the Goods shall pass at the time of payment of all such sums.

6.3 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 Delsys’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 from the date of delivery;

(d) notify Delsys immediately if it becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(d); and

(e) give Delsys such information as Delsys may reasonably require from time to time relating to:

(i) the Goods; and

(ii) the ongoing financial position of the Customer.

6.4 Subject to clause 6.5, the Customer may use the Goods in the ordinary course of its business (but not otherwise) before Delsys receives payment for the Goods.

6.5 At any time before title to the Goods passes to the Customer, Delsys may require the Customer to deliver up all Goods in its possession and 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.

7. Price and Payment

7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in Delsys’s published price list in force as at the date of the Order.

7.2 The price of the Goods:

(a) includes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.

(b) excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Delsys at the prevailing rate, subject to the receipt of a valid VAT invoice; and

7.3 Delsys may invoice the Customer for the Goods on or at any time after the Goods are shipped. Where Delsys has entered into the Contract on the basis that a deposit is to be paid, such deposit may be invoiced at the time of the Contract and shipping of the Goods shall not occur until such invoice has been paid in full (and time for payment shall be of the essence of the Contract).

7.4 The Customer shall pay each invoice (and time for payment shall be of the essence of the Contract) submitted by Delsys:

(a) in the case of any invoice for a deposit under clause 7.3, immediately;

(b) in any other case, within 30 days of the date of the invoice (regardless of whether or not the Goods have actually been delivered) or in accordance with any credit terms agreed by Delsys and confirmed in writing to the Customer; and

7.5 If the Customer fails to make a payment due to Delsys under the Contract by the due date, then, without limiting Delsys’s remedies under clause 10, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.5 will accrue each day at 5% a year above the Bank of England’s base rate from time to time, but at 5% a year for any period when that base rate is below 0%.

7.6 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

8. Intellectual Property

8.1 All Intellectual Property Rights that exist or arise in respect of or relate to the Goods (or any part of them or any software incorporated in them) are owned by Delsys or the manufacturer and nothing in these terms or the conditions or the Contract shall serve to transfer or give rise to any licence or transfer of such Intellectual Property Rights to the Customer.

8.2 The Customer agrees not to disassemble, decompile, or reverse engineer the Goods, or any part of them or any software supplied with them.

9. Limitation of liability

9.1 The limits and exclusions in this clause reflect the insurance cover Delsys has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.

9.2 The restrictions on liability in this clause 9 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

9.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a) death or personal injury caused by negligence;

(b) fraud or fraudulent misrepresentation;

(d) defective products under the Consumer Protection Act 1987.

9.4 Subject to clause 9.3, Delsys’s total liability to the Customer shall not exceed the price actually paid by the Customer for the Goods.

9.5 Subject to clause 9.3, the following types of loss are wholly excluded:

(a) loss of profits;

(b) loss of sales or business;

(d) loss of anticipated savings;

(e) loss of use or corruption of software, data or information;

(f) loss of or damage to goodwill; and

(g) indirect or consequential loss.

9.6 This clause 9 shall survive termination of the Contract.

10. Termination

10.1 Without limiting its other rights or remedies, Delsys may terminate this Contract with immediate effect by giving written notice to the Customer if:

(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing to do so;

(b) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(c) the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

(d) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

10.2 Without limiting its other rights or remedies, Delsys may suspend provision of the Goods under the Contract or any other contract between the Customer and Delsys if the Customer becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(d), or Delsys reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

10.3 Without limiting its other rights or remedies, Delsys may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.

10.4 On termination of the Contract for any reason the Customer shall immediately pay to Delsys all of Delsys’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, Delsys shall submit an invoice, which shall be payable by the Customer immediately on receipt.

10.5 Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

10.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

11. Force majeure

Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for eight weeks, the party not affected may terminate the Contract by giving 14 days’ written notice to the affected party.

12. General

12.1 Assignment and other dealings.

(a) Delsys may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.

(b) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Delsys.

12.2 Confidentiality.

(a) Each party undertakes that it shall not at any time during the Contract and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party (including Delsys prices or the details of any quotation provided), except as permitted by clause 12.2(b).

(b) Each party may disclose the other party’s confidential information:

(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12.2; and

(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

(c) Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

12.3 Entire agreement.

(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

12.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

12.5 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

12.6 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 12.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

12.7 Notices.

(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:

(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(ii) sent by email to the address specified in the Order.

(b) Any notice or communication shall be deemed to have been received:

(i) if delivered by hand, at the time the notice is left at the proper address;

(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

(iii) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 12.7(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

12.8 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

12.9 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.

12.10 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.