1.1 These are the only terms and conditions applicable to the supply of the Products, superseding all pre-contract representations and any other terms referred to in the Order or other document, unless these are expressly accepted in the Order Acceptance.
1.2 The Customer declares that it has accepted these terms and conditions in the knowledge that Alpha Control’s liability is limited and that the Product prices have been established accordingly.
2.1 “Alpha Controls” means Alpha Controls Limited of Alpha House, 1 Ormside Close, Hindley Industrial Estate, Hindley Green, Wigan, WN2 4HR, Greater Manchester, United Kingdom.
2.2 “Customer” means the party identified as the customer on the Order and Order Acceptance.
2.3 “Despatch” means the date of despatch to the Customer’s address in the United Kingdom or to the Customer’s nominated shipping agent for overseas delivery as the case may be.
2.4 “Delivery” means the date of delivery to the United Kingdom address of the Customer or to its agent.
2.5 “FCA” means “free carrier” as that expression is defined in the International Chamber of Commerce incoterms, 1990 edition.
2.6 “Order” means the Customer’s order for the Products whether in the form of a Customer order form, letter or fax, or the Customer’s authorised signature on an Alpha Controls contract.
2.7 “Order Acceptance” means Alpha Controls’ form of order acknowledgement faxed or posted to the Customer or an Alpha Controls contract counter-signed by Alpha Controls. No legally binding contract for supply of the Products will come into effect until the Order Acceptance has been sent to the Customer.
2.8 “Products” means any product manufactured and/or supplied by Alpha Controls, including any related instructions on use.
3. SUBSTITUTIONS AND MODIFICATIONS
3.1 Alpha Controls reserves the right to make improvements, modifications or substitutions to Products provided that there is no material or adverse effect on Product performance to its specification.
3.2 Product specifications, drawings, dimensions and weights are approximate. Subject to its obligations in Clause 6 Alpha Controls does not warrant statements made in or provided from the Product literature of third party manufacturers.
4. CANCELLATION, RESCHEDULING AND CHANGE ORDERS
4.1 Orders are non-cancellable except with Alpha Controls’ written consent, which will always be withheld in the case of non-standard or specially imported Products.
4.2 If Alpha Controls does agree to a cancellation this will be subject to and conditional upon the Customer’s acceptance of a charge equal to 25% of the cancelled Order value, unless the Customer substitutes a change Order of at least equivalent value.
4.3 If the Customer requests a rescheduled Delivery date agreement this will be subject to storage, interest and other costs as reasonably determined by Alpha Controls.
4.4 No requests for cancellation, rescheduling or change orders will be considered within 7 days prior to the current scheduled Delivery of the Products concerned.
5.1 Despatch dates quoted in Order Acceptances or subsequently are approximate and subject to the Customer having provided all necessary information to Alpha Controls for the purposes of the Order. Alpha Controls will use all reasonable efforts to meet the Despatch date but will not otherwise be liable for any delays.
5.2 United Kingdom deliveries will be to the Customer’s delivery address. Overseas deliveries will be to the address of the Customer’s nominated agent in the United Kingdom, unless otherwise agreed.
5.3 Each Delivery constitutes a separate and enforceable contract to which these terms and conditions apply.
5.4 If the Customer or its agent refuses or fails to accept a Delivery tendered in accordance with the contract a Delivery will be deemed to have occurred and Alpha Controls will be entitled to claim payment, and all additional storage, carriage and other costs incurred until actual Delivery is effected.
5.5 It is the Customer’s responsibility to inspect all Products delivered and to notify Alpha Controls in writing of any damage or shortages within 10 days of Despatch. No claims will be considered after this date.
5.6 Risk of loss or damage to Products passes on Delivery. FCA terms will apply to overseas Deliveries.
5.7 Title to Products will remain vested in Alpha Controls and will not pass to the Customer until all of the Products on the same Order or invoice have been paid for in full.
6.1 Alpha Controls warrants that it has good title to the Products supplied to the Customer.
6.2 Products are warranted against defects in workmanship or materials for a period of 12 calendar months from initial Despatch.
6.3 Within the warranty period Alpha Controls will, at its option reasonably exercised, repair or replace any defective Product returned to Alpha Controls Limited Engineering stores at Wigan, Manchester, freight prepaid, or otherwise notified to the Customer for the purpose of warranty returns PROVIDED that no unauthorised modifications or tampering have been carried out to the Products and that the Products have been correctly used and maintained. Return freight costs will be paid by Alpha Controls but the right is reserved to recharge these to the Customer, together with time and materials costs, if a returned Product is not defective within the terms of the warranty. Subject to Sub-Clause 5.7 title to replacement Products will pass to the Customer. All replaced Products will become the property of Alpha Controls.
6.4 DESIGN, FITNESS FOR PURPOSE AND ALL IMPLIED STATUTORY WARRANTIES ARE WARRANTIES WHICH APPLY TO THE PRODUCTS.
6.5 IT IS THE SOLE RESPONSIBILITY OF THE CUSTOMER TO DETERMINE, BY SUFFICIENT TESTING AND INVESTIGATION PRIOR TO ORDER, THAT THE PRODUCTS ARE SUITABLE FOR THEIR INTENDED USE. ANY TEST DATA MADE AVAILABLE BY ALPHA CONTROLS IS FOR IMFORMATION PURPOSES ONLY AND IS NOT WARRANTED IN ANY WAY.
7. PRICES AND TERMS
7.1 All price lists, quotations and estimates are subject to alteration without notice and Product prices invoiced will be those in effect on Despatch.
7.2 Prices are exclusive of Value Added Tax, carriage and packing, which will all be added invoice items. All Orders are subject to the minimum Order value currently specified by Alpha Controls.
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7.3 Subject to Sub-Clauses 7.5 and 7.6 payment terms are net 30 days from date of invoice and payments are not deemed made until Alpha Controls has cleared funds. All overdue amounts will be liable to interest charges payable on demand at the rate of 2% per month compound, accrued on a daily basis as well after as before any judgement. Without prejudice to its other rights Alpha Controls may suspend further deliveries on any Order until all due payments and charges have been received in full.
7.4 Where special discount terms apply, as shown on invoices or otherwise as agreed in writing, these must be claimed by the Customer at the time of payment and not retrospectively. All discounts are subject to withdrawal or suspension at Alpha Controls’ option, in the event of late payments.
7.5 If special contract prices and payment schedules have been agreed, these are subject to increase or change respectively at Alpha Controls’ option, in the event of non-compliance with the payment terms.
7.6 If Products are sold for export, on or before Order Acceptance the Customer will either pay for the Products in advance or will establish a confirmed irrevocable Letter of Credit in favour of Alpha Controls, in a form acceptable to Alpha Controls and which also complies with the requirements of UCP400 (International Chamber of Commerce Uniform Customs and Practice for Documentary Credits). All Letters of Credit must be confirmed by Barclays Bank Limited or another UK clearing bank. All bank charges (issuing or confirming banks) are payable by the Customer. All payments must be made in pounds sterling. No Despatches will be made until the requirements of this Sub-Clause have been met.
8. INDEMNITIES AND LIMITS OR LIABILITIES
8.1 Alpha Controls will indemnify the Customer for direct physical injury or death caused solely either by defects in the Products or by the negligence of its employees acting within the course of their employment and the scope of their authority.
8.2 Alpha Controls will indemnify the Customer for direct damage to property caused solely either by defects in the Products or by the negligence of its employees acting within the course of their employment and the scope of their authority. The total liability of Alpha Controls under this Sub-Clause will be limited to £250,000 for any one event or series of connected events.
8.3 Except as expressly stated in this Clause 8 and elsewhere in these terms and conditions, any liability of Alpha Controls for breach of its contract with the Customer will not exceed in the aggregate of damages, costs, fees and expenses capable of being awarded to the Customer the total price paid or due to be paid by the Customer under the contract.
8.4 If notice is given of any action (and all claims related) brought against the Customer claiming that any use or sale of a Product by the Customer infringes a United Kingdom patent, design right, trade secret, copyright or any other intellectual property right, Alpha Controls will defend such action at its expense and will pay the costs and damages awarded in such action, PROVIDED that Alpha Controls has sole control of the defence and all negotiations for settlement, AND PROVIDED that the Customer provides all available information, assistance and authority reasonably required in the course of such defence. In the event that a final injunction is obtained against further use of the Product Alpha Controls will take back the infringing item and grant the Customer a credit for its depreciated value on a straight-line 5 year basis.
These indemnities will not apply where Alpha Controls has followed designs or instructions provided by the Customer and the Customer will provide equivalent indemnities to Alpha Controls in respect of such designs or instructions. This Sub-Clause states the entire liability of Alpha Controls for intellectual property right infringement by the Products.
8.5 EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ALPHA CONTROLS DISCLAIMS ALL LIABILITY TO THE CUSTOMER IN CONNECTION WITH ITS PERFORMANCE OF THIS AGREEMENT OR THE CUSTOMER’S USE OF THE PRODUCTS AND IN NO EVENT WILL ALPHA CONTROLS BE LIABLE TO THE CUSTOMER IN CONTRACT OR IN TORT FOR SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR ARISING FROM LOSS OF USE, OF CONTRACT OPPORTUNITY OR UNFITNESS FOR USER PURPOSES.
9. GENERAL CONTRACT PROVISION
9.1 This contract represents the entire agreement between the parties. Each party warrants to the other that it has not relied upon any representation not recorded here which has induced it to enter into this contract. No amendment will be valid unless confirmed in writing and signed by a Director of Alpha Controls and by an authorised signatory of the Customer, on or after the date of this contract.
9.2 In the event that any of these terms and conditions or any part of any term or condition is judged illegal or unenforceable for any reason the remainder of these terms and conditions will continue in full force and effect to the extent permitted by law.
9.3 No delay or failure by either party in enforcing its respective rights will prejudice or restrict the rights of that party, and no waiver of any such rights, or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.
9.4 Neither party will assign or transfer this contract without the prior written consent of the other party, not to be unreasonably withheld.
9.5 Neither party will be liable for total or partial failure to perform its obligations in this contract (except payment to sums due) during any period in which its performance is prevented or hindered by circumstances beyond its reasonable control.
9.6 Any notice given under this contract by either party to the other must be in writing and delivered to the address of the other by: (a) personal delivery to a director or senior manager of the other party; or
(b) courier, or (c) registered mail; or (d) fax; and will be deemed to have been given in the case of :
a) mailing, three (3) working days after the date of mailing; or b) fax, when a written acknowledgement is received by the sender.
9.7 This contract will be governed and construed in accordance with English Law and the parties submit to the non-exclusive jurisdiction of the English Courts.
9.8 If any dispute of a technical nature arises which the parties are unable to resolve they both agree to utilise an alternative dispute resolution process (being a non-binding without prejudice conciliation procedure) in an effort to resolve the dispute to their mutual satisfaction before resorting to action in the Courts.