1. General
   1.1 In these Conditions: the Seller means Envirosystems (UK) Ltd; the Buyer means the person or company who or which has ordered products from the Seller; Products means any Products agreed to be supplied by the Seller; the Sales Confirmation means the sales confirmation form provided by the Seller to the Buyer, Business Day means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business, the Order means the Buyer’s order for the Products (whether placed verbally or in writing), the Contract means a contract between the Seller and the Buyer for the sale and purchase of the Products in accordance with these Conditions, and the Conditions means the terms and conditions set out in this document as amended from time to time.1.2 These Conditions shall be incorporated into each Contract and shall govern each Contract to the exclusion of any conditions of the Buyer unless expressly accepted by the Seller in writing.1.3 These Conditions may not be varied or waived except with the express written agreement of the Seller.1.4 A reference to writing or written includes email.

2. Basis of Contract

2.1 A quotation for the Products given by the Seller is non-binding and subject to change and shall not constitute an offer. A quotation shall only be valid for a period of 20 days from its date of issue.

2.2 An Order constitutes an offer by the Buyer to purchase the Products in accordance with these Conditions.

2.3 An Order shall only be deemed to be accepted when the Seller issues a Sales Confirmation or when the Seller fulfils the order (if earlier), at which point the Contract shall come into existence.

3. Price and payment

3.1 Any price quoted or accepted is (unless otherwise stated) exclusive of sales tax, VAT (which will, where applicable, be charged at the current rate) and of any other duties and taxes which may be payable in respect of the Products (including but not limited to import or export duties) which will be paid by the Buyer.

3.2 The prices payable by the Buyer shall be those set out in the Sales Confirmation. The Seller reserves the right to invoice at prices prevailing at the time of dispatch (if it has informed the Buyer of this price prior to dispatch). Extra charges will be made for all applicable taxes, carriage, and freight including insurance, packing, and special tests or inspections. In the event of a variation to an order placed by the Buyer, the price already stated shall be adjusted accordingly. Such extra charges shall be set out in the Sales Confirmation.

3.3 Except where expressly provided otherwise, terms of payment are net within 30 days of invoice and shall be paid in full and in cleared funds to a bank account nominated by the Seller.

3.4 If the Buyer fails to make a payment due to the Seller under the Contract by the due date then:
3.4.1 the Buyer 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 Condition 3.4 will accrue each day at 3% above the base lending rate of HSBC Bank from time to time;
3.4.2 the Seller shall be entitled to recover a fixed sum in accordance to the amount owed as set out under the Commercial Debts (Interest) Act 1998 from the Buyer;
3.4.3 the Seller shall be entitled to recover the reasonable costs associated to recovering the amount owed from the Buyer (less the fixed sum under Condition 3.4.2); and
3.4.4 all invoices under the Contract and any other contract between the Seller and the Buyer become immediately due for payment.

3.6 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).

3.5 The right is reserved by the Seller to correct any clerical or typographical invoicing errors.

4. Changes

4.1 The Seller reserves the right to make any change in the specification of the Products which does not materially affect the functionality, performance or price thereof; any such change shall not invalidate any order placed with the Seller or impose any liability on the Seller.

4.2 Subject to Condition 4.1, if the Seller shall cease to manufacture any Products ordered by the Buyer, it shall give notice of the fact in writing to the Buyer (but shall not be liable for any loss or damage occasioned thereby to the Buyer) whereupon the Buyer will have the option, to be exercised within ten (10) days of the date of such notice, either to take equivalent Products (if available from the Seller) or to cancel its order without further liability upon the Seller or the Buyer. If the Buyer has not exercised such option within such period, the order shall be deemed to be continued with the equivalent Products.

5. Delivery

5.1 The Products will be made available at such location agreed by the parties (Delivery Location) at any time after the Seller notifies the Buyer that the Products are ready. At the request and expense of the Buyer, the Seller may make arrangements for the carriage of the Products to the Buyer and for insurance of them during transit.

5.2 Collection by the Buyer or collection by any carrier for carriage from the Delivery Location shall be deemed to be delivery of the Products and the due performance of the Seller’s obligations.

5.3 Delivery periods and dates for delivery are approximate only. The time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Products that is caused by:
5.3.1 a force majeure event in accordance with Condition 6;
5.3.2 delays in the supply of any materials, goods and/or the Products to the Seller;
5.3.3 the Buyer’s failure to comply with their obligations under the Contract; or
5.3.4 the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.

5.4 Delays in the delivery of an Order shall not entitle the Buyer to:
5.4.1 refuse to take delivery of the Order;
5.4.2 claim damages; or
5.4.3 terminate the Contract.

5.5 If the Buyer fails to take delivery of the Products within 7 days after receiving notice from the Seller that they are ready for collection or the Buyer has not accepted actual delivery of them, the Seller may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Products or charge the Buyer for any shortfall below the price of the Products. The risk of loss of or damage to the Products (other than loss or damage caused by the negligence or default of the Seller or its employees or agents) shall pass to the Buyer at the end of the 7-day period (unless the Seller has resold or disposed of such Products).

5.6 Where delivery is to be made by instalments, delay in delivering one instalment shall not entitle the Buyer to refuse to accept the remaining instalments. Each instalment shall constitute a separate contract and be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.

6. Force majeure

6.1 The Seller shall be excused from the performance of any of its obligations if and in so far as, and for so long as, such performance is delayed or prevented by circumstances beyond its reasonable control including but not limited to strikes, lock-outs or labour disputes of any kind (whether relating to its own employees or others), fire, flood, explosion, natural catastrophe, epidemics, pandemics, governmental acts, military operations, blockade, sabotage, revolution, riot, civil commotion, war or civil war.

7. Risk and title

7.1 Subject to clause 5.5, The risk in the Products shall pass on completion of delivery to the Buyer at the Delivery Location.

7.2 Title to the Products shall not pass to the Buyer until the Seller receives payment in full (in cash or other cleared funds) for the Products and any other Products that the Seller has supplied to the Buyer, in which case title to the Products shall pass at the time of payment of all such sums.

7.3 Until title to the Products has passed to the Buyer, the Buyer shall:

7.3.1 store the Products separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property;

7.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Products;

7.3.3 maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;

7.3.4 notify the Seller immediately if it becomes subject to any of the events listed in Conditions 10.1.2 to 10.1.4 (Termination); and

7.3.5 give the Seller such information as the Seller may reasonably require from time to time relating to:

(a) the Products; and

(b) the ongoing financial position of the Buyer.

7.4 Until title to the Products has passed to the Buyer, the Seller shall have the right to enter the Seller’s premises, re-possess the Products and re-sell the Products if either of the following events occur:

7.4.1 the Buyer fails to make payment on or before the date upon which payment falls due; or

7.4.2 the Buyer’s financial position deteriorates so far as to reasonably justify the opinion that it is unable or unwilling to make payment to the Seller in respect of the Products.

7.5 At any time before title to the Products passes to the Buyer, the Seller may require the Buyer to deliver up all Products in its possession that have not been resold, or irrevocably incorporated into another Product and if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Products are stored in order to recover them.

7.6 The Seller reserves the right to bring an action against the Buyer for non-payment for the Products even if title in the Products has not passed to the Buyer.

8. Warranty

8.1 The Seller warrants that on delivery, the Products shall:

8.1.1 confirm in all material respects with their description;
8.1.2 be free from material defects in design, material and workmanship; and
8.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

8.2 Subject to Condition 8.3, if

8.2.1 the Buyer gives notice in writing to the Seller within 7 days of delivery (or in the case of defects that are not reasonably discoverable at delivery, within 3 days of discovery of the defect (but in any event within 12 months of delivery)) that some or all of the Products do not comply with the warranty set out in Condition 8.1;

8.2.2 the Seller is given a reasonable opportunity of examining such Products; and

8.2.3 the Buyer (if asked to do so by the Seller) returns such Products to the Seller’s premises at the Buyer’s cost,

the Seller shall, at is option, repair or replace the defective Products, or refund the price of the defective Products in full.

8.3 The Seller shall not be liable for the Products’ failure to comply with the warranty set out in Condition 8.1 if:

8.3.1 the Buyer makes any further use of such Products after giving notice in accordance with Condition 8.2;

8.3.2 the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, use and maintenance of the Products as set out in the Sales Confirmation or (if there are none) good trade practice regarding the same;

8.3.3 the defect arises as a result of the Seller following any specification supplied by the Buyer;

8.3.4 the Buyer alters or repairs the Products without the written consent of the Seller;

8.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or

8.3.6 the Products differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

8.4 Except as provided in this Condition 8, the Seller shall have no liability to the Buyer in respect of the Product’s failure to comply with the warranty set out in Condition 8.1.

8.5 All other warranties, representations or conditions (statutory or otherwise) including those as to quality, condition, description or fitness for purpose are hereby expressly excluded to the extent permitted by law.

8.6 Without prejudice to clause 8.2, any claim made in relation to this Condition 8 in relation to latent defects must be made within 12 months of delivery.

8.7 These Conditions shall apply to any repaired or replacement Products supplied by the Seller.

9. Limit of liability

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

9.2 The Buyer agrees that the price of the Products reflects the limitations contained in the Condition 9.

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

9.3.1 death or personal injury caused by negligence;

9.3.2 fraud or fraudulent misrepresentation; or

9.3.3 breach of the terms implied by section 12 of the Sales of Goods Act 1979.

9.4 Subject to Condition 9.3 (liabilities which cannot be legally limited), the Seller’s total liability to the Buyer, in relation to any event or series of events in connection to the Contract shall shall not exceed the price of the Products paid by the Buyer.

9.5 Subject to Condition 9.3 (liabilities which cannot be legally limited), the Seller will not be liable for the following types of loss:

9.5.1 loss of profits;
9.5.2 loss of sales or business;
9.5.3 loss of staff time;
9.5.4 loss of agreements or contracts;
9.5.5 loss or liabilities under or in relation to any other contract;
9.5.6 loss of anticipated savings;
9.5.7 loss of or damage to goodwill; and
9.5.8 indirect or consequential loss.

9.6 Nothing in this Condition 9 shall limit the Buyer’s payment obligations under the Contract, nor shall it limit either party’s liability for wilful abandonment or deliberate breach of the Contract.

9.7 This Condition 9 shall survive termination of the Contract.

10. Termination

10.1 Without limiting its other rights or remedies, the Seller may terminate the Contract (and any other contract that it may have in place with the Buyer) with immediate effect by giving written notice to the Buyer if:

10.1.1 the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 Business Days of that party being notified in writing to do so;

1.0.1.2 the Buyer 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;

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

10.1.4 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, the Seller may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Seller if the Buyer becomes subject to any of the events listed in Conditions 10.1.2 to 10.1.4, or the Seller reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.

10.3 Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer 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 Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Seller shall submit an invoice, which shall be payable by the Buyer 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. Usage

11.1 It is the duty of the Buyer to ensure that all Products purchased hereunder are utilised in accordance with the Seller’s application and usage recommendations and the Buyer shall indemnify the Seller in respect of all liability (subject to Condition 9 (limit of liability)) arising in connection with any breach of this duty.

12. Survival of terms

12.1 The expiration or termination of the Contract, howsoever arising, shall be without prejudice to any provisions of the Contract (including these Conditions) which are to have effect after the date of such expiration or termination.

12.2 Any terms appearing on the Buyer’s orders, or any other documents issued by the Buyer, shall be wholly inapplicable to the sale of Products, and the Conditions shall prevail.

13. Assignment

13.1 The Seller 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.

13.2 The Buyer 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 the Seller.

14. Confidentiality

14.1 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 pricing information contained within the Contract), except as permitted by Condition 14.2.

14.2 Each party may disclose the other party’s confidential information:

14.2.1 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 Condition 14.2; and

14.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority

14.3 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.

15. Notices

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

15.1.1 delivered by hand or pre-paid first class 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

15.1.2 sent by email to the following addresses:

(a) in the case of a notice or communication given to the Seller: [email protected]

(b) in the case of a notice of communication given to the Buyer: to the email address provided by the Buyer to the Seller.

15.2 Any notice or communication shall be deemed to have been received:

15.2.1 if delivered by hand, at the time the notice is left at the proper address;

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

15.2.3 if send by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. For the avoidance of doubt, 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.

15.3 This Condition 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.

16. Entire Agreement

16.1 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.

16.2 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.

17. No rights for Third Parties

17.1 A person who is not a party to the Contract shall have no right under these Conditions or other Contracts.

18. Governing law and Jurisdiction

18.1 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.

18.2 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.