In these Terms and Conditions of Sale, “Seller” means Chromalox (UK) Ltd; “Buyer” means the person, firm, company or corporation by whom the order is given. “Goods” means the goods (including Software and Documentation, as defined in Clause 10) described in the Seller’s Acknowledgement of Order form. “Contract” means the written agreement made between Buyer and Seller for the supply of the Goods and “Contract Price” means the price payable to Seller by Buyer for the Goods.
2. THE CONTRACT
2.1 All orders must be in writing and are accepted subject to these Terms and Conditions of Sale. No terms or conditions put forward by Buyer and no representations, warranties, guarantees or other statements not contained in Seller's quotation or Acknowledgement of Order nor otherwise expressly agreed in writing by Seller shall be binding on Seller.
2.2 The Contract shall become effective only upon the date of acceptance of Buyer’s order by Seller’s Acknowledgement of Order or upon the date of fulfilment of all conditions precedent stipulated in the Contract, whichever is the later (the “Effective Date of the Contract”). If the details of the Goods described in Seller’s quotation differ from those set out in the Acknowledgement of Order form, the latter shall apply.
2.3 No alteration or variation to the Contract shall apply until agreed in writing by both Buyer and Seller. However, Seller reserves the right to effect minor modifications and/or improvements to the Goods before delivery provided that the performance of the Goods is not adversely affected and that neither the Contract price nor the delivery date is affected; such modifications to be communicated to Buyer in writing.
3. VALIDITY OF QUOTATION AND PRICES
3.1 Unless previously withdrawn, Seller's quotation is open for acceptance within the period stated therein or, when no period is so stated, within thirty days after its date.
3.2 Prices are firm for delivery within the period stated in Seller’s quotation and are exclusive of Value Added Tax and of any similar and other taxes, duties, levies or other like charges arising outside the United Kingdom in connection with the performance of the Contract, as applicable.
3.3 Prices are for Goods delivered Ex-Works (as defined by Incoterms) and, unless otherwise stated in the Seller’s quotation, are exclusive of packing.
Payment shall be made in full in the currency of the Contract within thirty days of date of invoice. Goods will be invoiced at any time after their readiness for despatch has been notified to Buyer. Without prejudice to Seller’s other rights, Seller reserves the right to: charge interest on any overdue sums at 4% above the base lending rate of Barclays Bank plc, London (or such higher rate stipulated by applicable law) during the period of delay; and to suspend performance of the Contract (including withholding shipment) in the event that Buyer fails to make payment when due under the Contract or any other contract.
5. DELIVERY PERIOD
5.1 Unless otherwise stated in Seller’s quotation, all periods stated for delivery run from the Effective Date of the Contract and are to be treated as estimates only without involving any contractual obligations.
5.2 If Seller is delayed in or prevented from performing any of its obligations under the Contract due to the acts or omissions of Buyer or its agents (including but not limited to failure to provide specifications and/or fully dimensioned working drawings and/or such other information as Seller reasonably requires to proceed expeditiously with its obligations under the Contract), the delivery period and the Contract price shall both be adjusted accordingly.
5.3 If having been notified that the Goods are ready for despatch Buyer fails to take delivery or provide adequate shipping instructions, Seller shall be entitled to place the Goods into a suitable store at Buyer’s expense.
6. FORCE MAJEURE
6.1 The Contract (other than Buyer’s obligation to pay all sums due to Seller in accordance with the Contract) may be suspended, without liability, in the event and to the extent that its performance is prevented or delayed due to any circumstances beyond the reasonable control of the party affected, including but not limited to: Act of God, war, riot, fire, explosion, accident, flood, sabotage, compliance with governmental requests, laws and regulations, orders or actions, or labour trouble, strike, lockout or injunction.
6.2 If performance of the Contract or any part thereof is suspended by reason of this Clause 6 for more than 180 consecutive calendar days, either party may cancel the then unperformanced portion of the Contract by notice in writing given to the other party, without liability.
7. FACTORY TESTING, INSPECTION AND CALIBRATION
The Goods will be inspected by Seller or manufacturer and, where practicable, submitted to Seller’s or manufacturer’s standard tests in the factory before despatch. Any additional tests of inspection (including inspection by Buyer or its calibration) or the supply of test certificates and/or detailed test results shall be subject to Seller’s prior written agreement and Seller reserves the right to charge therefore if Buyer or its representative fails to attend such tests, inspection and/or calibration after seven days’ notice that the Goods are ready, and, therefore the tests, inspection and/or calibration will proceed and shall be deemed to have been made in the presence of Buyer or its representative and the Seller’s statement that the Goods have passed such testing and/or inspection and/or have been calibrated shall be conclusive.
8. INSPECTION ON DELIVERY
No claims for shortfalls in quantity or for incorrect delivery may be made more than 14 days after delivery.
9. DELIVERY, PROPERTY AND RISK
9.1 Unless otherwise stated in the Contract, the Goods will be delivered Ex-Works (as defined by Incoterms) and the title and the risk of loss of or damage to the Goods shall pass to Buyer upon shipment. Any delivery terms used in the Contract shall be defined in accordance with the latest version of Incoterms.
9.2 If Buyer fails to make any payment to Seller when due, or enters into bankruptcy, liquidation or a composition with its creditors, or has a receiver or manager appointed over all or part of its assets, or becomes insolvent, Seller shall have the right, without liability for loss and without prejudice to any other remedies:-
9.2.1 To enter without prior notice any premises where the goods may be and to repossess and dispose of them so as to discharge any sums owed to Seller by Buyer, and/or
9.2.2 To require Buyer not to resell or part with possession of any of the Goods until Buyer has paid in full all sums owed by it to seller.
10. DOCUMENTATION AND SOFTWARE
10.1 Title to and ownership of the copyrights in software incorporated into or provided for use (“Software”) with the Goods and documentation supplied (“Documentation”) with the Goods shall remain with Seller (or such other party as may have supplied the Software and/or Documentation to Seller) and is not transferred hereby to Buyer.
10.2 Buyer is hereby granted a non-exclusive licence to use the Software and Documentation in conjunction with the Goods, provided that and for so long as the Software and Documentation are not copied and Buyer holds the Software and Documentation in strict confidence and does not disclose them to others, or permit others to have access to them (other than Seller’s standard operating and maintenance manuals).
10.3 Buyer may transfer the above licence to another party which purchases, rents or leases the Goods, provided the other party accepts and agrees to be bound by the conditions of this Clause 10.
10.4 Seller shall retain ownership of all inventions, designs and processes made or evolved by it and, save as set out in this Clause 10, no rights in intellectual property are hereby granted.
11.1 Seller warrants (i) subject to the other provisions of the Contract, good title to and the unencumbered use of the Goods and (ii) that Goods manufactured by Seller or its affiliates shall conform with Seller’s specifications therefore. Seller will make good, by repair or at Seller’s option by the supply of a replacement part or parts, any defects which, under proper use, care and maintenance, appear in Goods within 12 calendar months from putting such Goods into operation or 18 calendar months after their delivery, whichever period expires the sooner (“Warranty Period”) and which arise solely from faulty materials or workmanship; provided always that defective items are returned to Seller carriage and insurance prepaid within the warranty Period. Consumables returned shall include a-rings, gaskets, fuses, bulbs, and the like.
11.1 Goods repaired or replaced in accordance with this Clause 11 shall be subject to the foregoing warranty for the unexpired portion of the Warranty Period or for ninety days from the date of their return to Buyer, whichever expires the later.
11.2 Notwithstanding Clause 11.1, Seller shall not be liable for: fair wear and tear; materials or workmanship made, furnished or specified by Buyer, non-compliance with Seller’s storage, installation, operation or environmental requirements, lack of proper maintenance; any modification or repair not previously authorised by Seller in writing; the use of non-authorised software or spare or replacement parts.
11.3 The foregoing constitutes Seller’s sole warranty and Buyer’s exclusive remedy for breach thereof. No representations, warranties or conditions of any kind, express or implied, shall apply as to merchantability, fitness for any particular purpose or any other matter with respect to any of the Goods.
12. INTELLECTUAL PROPERTY RIGHTS
12.1 Subject to the limitations set forth in Clause 13, Seller shall indemnify Buyer in the event of any claim for infringement of Letters Patent, Registered Design, Design Right, Trade Mark or Copyright (“Intellectual Property Rights”) issued at the date of formation of the Contract arising from the use or sale of the Goods, against all reasonable costs and damages awarded against Buyer in any action for such infringement, or for which Buyer may become liable in any such action, provided always that Seller shall not be liable to so indemnify Buyer in the event that: (i) such infringement arises as a result of Seller having followed a design or instruction furnished or given by Buyer, or the Goods have been used in a manner or for a purpose or in a country not specified by or disclosed to Seller prior to the date of the Contract or in association or combination with any other equipment or software, or (ii) Seller has at its expense procured for Buyer the right to continue to use the Goods or has modified or replaced the Goods so that the Goods no longer infringe.
12.2 Buyer warrants that any design or instructions furnished or given by it shall not cause Seller to infringe any Intellectual Property Rights in the performance of Seller’s obligations under the Contract and shall indemnify Seller against all reasonable costs and damages which Seller may incur as a result of any breach of such warranty.
12.3 Seller shall not be liable to indemnify Buyer under Clause 12.1 in the event that: (i) Buyer has failed to give Seller the earliest possible notice in writing of any claim made or to be made or of any action threatened or brought against Buyer and/or Buyer has failed to permit Seller, at Seller’s expense, to conduct and control any litigation that may ensue and all negotiations for a settlement of the claim, (ii) Buyer has made without Seller’s prior written consent any admission which is or may be prejudicial to Seller in respect of any such claim or action, or (iii) the Goods have been modified without Seller’s prior written authorisation.
13. LIMITATION OF LIABILITY
Except for death or injury caused by Seller’s negligence, Seller’s total liability for any and all damages, claims or causes of action howsoever arising (including, without limitation, damages, claims or causes of action by virtue of tort, breach of contract or statutory duty, negligence, strict liability of infringement of Intellectual Property Rights) shall not exceed the Contract Price. Notwithstanding the foregoing, Seller shall not be liable to Buyer in any circumstances for any loss of profits, loss of contracts, loss of use, loss of data or consequential or indirect loss nor, save as set out in Clause 12 and in the proceeding provisions of this Clause, for any loss or damage of any kind whatsoever, howsoever arising, claimed against or suffered by Buyer.
14. STATUTORY AND OTHER REGULATIONS
14 .1 If the Seller’s obligations under the Contract shall be increased or reduced by reason of the making or amendment after the date of Seller’s quotation of any law or any order, regulation or by-law having the force of law that shall affect the performance of Seller’s obligations under the Contract, the Contract Price and delivery period shall be adjusted accordingly and/or performance of the Contract suspended or terminated, as appropriate.
14.2 Buyer’s personnel shall, whilst on Seller’s or manufacturer’s premises, comply with applicable site regulations and Seller’s or manufacturer’s reasonable instructions, including but not limited to those relating to safety, security and electrostatic discharge.
15. SPECIAL TOOLS, JIGS, TEST RIGS, ETC
Seller shall retain ownership of any special tools, jigs, dies, moulds, patterns, test rigs, etc., developed by or for it in connection with the Contract and shall be entitled to use and dispose of same in any manner it chooses
16 .1 Buyer may cancel the Contract in respect of any or all of the Goods provided that Buyer gives Seller reasonable advance written notice of such cancellation and reimburses Seller for all losses (including but not limited to the loss of anticipated profits), damages, costs and expenses arising from such cancellation.
16.2 No waiver by either party with respect to any breach of default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound.
16.3 If any clause, sub-clause or other provision of the Contract is invalid under any statute or rule of law, such provision, to that extent only, shall be deemed to be omitted without affecting the validity of the remainder of the Contract.
16.4 Buyer shall not be entitled to assign or novate its rights or obligations hereunder without the prior written consent of Seller.
16.5 The Contract shall in all respects be construed in accordance with the laws of England excluding, however, any effect on such laws of the 1980 Vienna Convention on Contracts for the International Sale of Goods and clauses 17 and 18 below. All disputes arising out of the Contract shall be subject to the exclusive jurisdiction of the English courts.
16.6 The headings to the Clauses and paragraphs of these Terms and Conditions of Sale are for guidance only and shall not affect the interpretation thereof.
16.7 All notices and claims in connection with the Contract must be in writing.
17. UNITED STATES EXPORT CONTROLS
Products, technical data/technology, and services of Chromalox, Inc., its subsidiaries, and distributors are subject to the export control laws and regulations of the United States. Diversion contrary to U.S. law is prohibited. Buyer acknowledges that Products, and the direct product thereof, must not be exported or re-exported, directly or indirectly (including via remote access) under the following circumstances: (i) to Cuba, Iran, North Korea, Sudan, or Syria, or any national of these countries; (ii) to any person or entity listed on any U.S. government denial list, including but not limited to, the U.S. Department of Commerce Denied Persons, Entities, and Unverified Lists (http://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern/denied-persons-list), the U.S. Department of Treasury Specially Designated Nationals List (http://www.treasury.gov/resource-center/sanctions/SDN-List/Pages/default.aspx), and the U.S. Department of State Debarred List (http://pmddtc.state.gov/compliance/debar.html); (iii) to any entity when Buyer knows, or has reason to know, the end use of the Product is related to the design, development, production, or use of missiles, chemical, biological, or nuclear weapons, or other un-safeguarded or sensitive nuclear uses; and (iv) to any entity when Buyer knows, or has reason to know, that an illegal reshipment will take place.
U.S. antiboycott laws require U.S. firms to refuse to participate in foreign boycotts that the United States does not sanction. Chromalox, Inc., its subsidiaries and distributors will not and cannot support or participate in any foreign boycott contrary to U.S. regulations or U.S. policy.