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Terms & Conditions

TROJAN HARDWARE & DESIGNS LIMITED

Jan 2010

 

  1. General

These Conditions of Sale (“the Conditions”) supplied by Trojan Hardware & Designs Limited (“the seller”) to a purchaser (“the Buyer”) shall be incorporated into each contract (“the Contract”) made by the Seller for the sale of the Seller’s goods (“the Goods”).  The Seller contracts as aforesaid upon such terms as are agreed between the Seller and the Buyer and upon the terms of the Conditions alone.  No conditions or terms of the Buyer shall apply to this contract.  Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.  No variation of any of the Conditions shall be effective unless in writing and signed by a duly authorised representative of the Seller.

 

  1. Quotations and Acceptance of Orders

2.1 Subject to clause 5.2 any quotation by the Seller remains open for acceptance for 30 days from the date on which the Seller sends the quotation to the Buyer unless the quotation specifically refers to an alternative period during which the quotation shall remain valid.  If no quotation is rendered, the price set out in the seller’s price list which is in force on the date the Goods are delivered shall apply, with any discounts granted by the Seller.

2.2 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.

2.3 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the seller shall not be liable for any such advice or recommendation which is not so confirmed.

2.4 All purchase orders received before 12.30 Mid’day Monday – Thursday will be delivered on a next day service. Purchase orders received after 12.30 Mid’day will not be guaranteed for a next day service. Purchase orders received Fridays between 8.00am – 10.00am will also be guaranteed next day delivery.

 

  1. Specifications

3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’s authorised representative.

3.2 The Goods shall be supplied in accordance with the Buyer’s specifications (“the Buyer’s Specifications”) which shall include (but not limited to ) any plans, designs, data or other information relating to the Goods.  The Buyer shall be solely responsible for the Buyer’s Specification and ensuring that they are accurate the Seller to perform the contract in accordance with its terms.

3.3 The buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design trade mark or other industrial or Intellectual Property Rights of any other person which results from the Seller’s use of the Buyer’s Specifications.

3.4 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC requirements. Where agreed with buyer any applicable changes to be approved by buyer Prior to change.

3.5 No order which has been accepted by the seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages charges and expenses by the Seller as a result of cancellation. This clause is not applicable under a consignment stock system.

3.6 Distributors will need to provide 3 months firm purchase orders and also 2 months projection. This will allow Trojan to plan forward purchases for a 16 week manufacturing lead-time.

 

  1. Packaging

Packaging for the Goods shall be at the discretion of the Seller who shall have the right to pack the Goods in such manner and with such materials and in such quantities as it in its absolute discretion thinks fit unless detailed packaging instructions are received from the Buyer prior to agreeing a price for the Goods.

Unless a prior agreement with the buyer to get any changes approved.

 

  1. Price

5.1 All prices shall be as stated by the Seller to the Immediate buyer and prices are x works.

5.2 All prices stated shall be subject to variation at the sole discretion of the Seller at any time without prior notice and the Seller shall provide the Buyer with a notice of any such variation in writing before delivery of the Goods (“Variation Notice”).

5.3 Where the Seller has sent a Variation Notice to the Buyer pursuant to Clause 5.2 above the Buyer shall be entitled to rescind the Contract by notice in writing to the Seller at any time within 7 days of the receipt by the Buyer of the Variation Notice. A Variation Notice shall be deemed to have been received by the Buyer ;

5.3.1 in the case of a notice sent by first class post, 48 hours after the date of posting;

5.3.2 In the case of a notice sent by fax or other electronic means of communication, if the notice was sent between the hours of 9.00 a.m to 5.30 p.m, on a business day, on the day of transmission, and otherwise on the next following business day.

The buyer will be charged delivery to the buyers post code area and the rate charged will be that of the seller’s standard rate to the buyers post code area by the sellers approved transport contractor.

The buyer will be charged for special delivery services out side of the seller’s normal service

The seller’s normal service is 2 days.

The buyer will be charged for deliveries outside of mainland UK unless otherwise agreed.

5.5 The price is exclusive of any applicable value added tax, which the buyer shall be additionally liable to pay.

 

  1. Payment

6.1 Liability for payment for the Goods supplied shall arise on Delivery and payment in cleared funds is due thirty days from the date of the invoice or as otherwise specifically agreed in writing by the Seller.  Payment shall be due and the Seller shall be entitled to sue for the price whether or not property in the Goods has been passed by virtue of clause 11.

6.2 Sums unpaid after the due date shall bear interest until the day payment is received at the 5% per annum above the base rate from time to time of National Westminster Bank Plc accruing from day to day and compounded monthly from the date of delivery until the date of payment in full.

6.3 If the recovery of sums outstanding from the Buyer is dealt with by the Seller’s own debt collection department and/or is passed to a Debt Collection Agency the Buyer shall pay the Seller’s own debt collection department cost and/or costs in instructing the said Debt Collection Agency and all ancillary legal costs.

6.4 Without prejudice to any other rights or remedies of the Seller any default of the Buyer in making payment on the due date shall entitle the Seller to suspend deliveries under the Contract or any other contract so long as the default continues and to treat Contract as repudiated by the Buyer and determined if the Buyer has not within 14 days of receiving written notice from the Seller paid all sums due to the Seller.

6.5 The Seller may cancel this Contract at any time before the Goods are delivered by given written notice. On giving such notice the Seller shall promptly repay to the Buyer any sums paid in respect of the price.  The Seller shall not be liable for any loss or damage whatever arising from such cancellation. Unless a prior cancellation period is agreed with the buyer

6.6 The Seller reserves the right to deliver any Goods ordered by the Buyer in instalments and to invoice the Buyer pro rota in respect of each such instalment following Delivery.

  1. Delivery

7.1 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods(or any of them) promptly or at all.

7.2 If the Seller delays or fails to deliver the Goods (or any of them)promptly the Seller shall inform the Buyer of any such delay and attempt to agree with the buyer a revised date for delivery of the Goods. If the Buyer and Seller are unable to agree a revised date for delivery the Buyer shall be bound to accept delivery and to pay for the Goods in full provided that delivery shall be tendered within a reasonable time of the delivery date specified by the Seller at the time of Order.

7.3 Delivery shall take place when the Goods are unloaded at or delivered to the Buyers premises or other delivery location agreed between the Seller and the Buyer except that if the buyer collects or arranges collection of the Goods from the Seller’s premises, or nominates a carrier for the Goods from the Seller’s premises, or nominates a carrier for the Goods delivery shall take place when the Goods are loaded on to the collection or carrier’s vehicle.

7.4 The Seller will use its best endeavours to complete delivery on or before any delivery dates requested by the Buyer or estimated by the Seller but will not be liable for any delay in delivery.

7.5 The Buyer shall accept immediate delivery or arrange to collect the Goods or arrange suitable storage, failing which the Seller may either:

7.5.1 effect delivery by whatever means it thinks most appropiate ; or

7.5.2 arrange storage at the Buyer’s risk and expense pending delivery; or

7.5.3 re-sell or otherwise dispose of the Goods without prejudice to any other rights the Seller may have against the Buyer for breach of contract or otherwise.

7.6 Where the Agreement provides for delivery by instalments any failure or defect in any one or more instalments delivered shall not entitle the Buyer to repudiate the agreement nor to cancel any subsequent instalments.

7.7 The Buyer shall not be entitled to reject the Goods by reason only of short delivery.

7.8 The quantity of the Goods delivered under the Contract shall be recorded by the Seller upon despatch from the Seller’s factory or warehouse and the Seller’s record shall be signed by the Buyer as evidence of the quantity packages delivered.

7.9 It is the Buyer’s responsibility to notify the Seller if the Goods have not been received by the Buyer within seven working days of the date of receipt of the Seller’s invoice therefore. If no notification is made the Buyer shall be deemed to have received the Goods.

  1. Examination and Claims

8.1 The Buyer shall upon delivery examine the Goods and promptly (but in any event within seven working days of delivery) provide the Seller with a notice confirming that the Goods are in accordance with the Buyers specification (“Certificate of Conformity”) or notify in writing the Seller and the carrier, where relevant, of any apparent damage, shortage or defect by reason of which the Buyer alleges that the Goods delivered are not in accordance with the Buyers Specification and which should be apparent on reasonable inspection.

8.2 The Buyer shall be deemed to have provided the Seller with a Certificate of Conformity in respect of the Goods delivered where no written notification of any such damage, shortage or defect is received by the Seller within 7 working days of delivery.

8.3 If the buyer rejects any delivery of Goods which are not in accordance with the Buyer’s Specification the Seller shall within 14 days of being requested to do so by the Buyer supply replacement Goods which are in accordance with the Buyers Specification (in which event the Seller shall be deemed not to be in breach of this Contract or have any Liability or have any liability to the Buyer).

8.4 The Buyer shall comply with the carrier’s rules regulations and requirements so as, when appropriate, to enable the Seller to make a claim against the carrier in respect of any damage or loss in transit.

8.5 Claims in respect of damage defects or shortage not apparent on examination under clause 8.1 must be notified in writing to the Seller within twenty-one days of the date of delivery by the end customer

8.6 Notification under clause 8.1 and 8.5 above shall be first made by telephone then by notice in writing delivered by fax or by first class recorded delivery mail or email and addressed to the Seller at its principal place of business or such other address as may at the relevant time have been notified to the Buyer.

In default of such notification the Seller shall, be deemed conclusively to have performed properly its obligations under the Contract and the Goods shall be deemed to have been supplied in accordance with the Buyers Specification.

8.7 The cost to the Seller of and incidental to the return by the Buyer to the Seller of any of the Goods delivered hereunder shall, except to the extent that the Seller  has accepted responsibility hereunder, be the responsibility of the Buyer who shall indemnify the Seller against any such costs including, but without limitation to the generality of the foregoing, costs of transport and testing or any other costs or loss to the Seller arising there from.

 

  1. Warranty

9.1 Subject as expressly provided in these conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.

9.2 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affect by these conditions.

9.3 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these conditions.

 

  1. Intellectual Property

10.1 The specifications and designs of the Goods (including the copyright, design right or other intellectual property in them) shall as between the parties be the property of the Seller. The Buyer warrants that the use of those designs or specifications for the manufacture, processing, assembly or supply of the Goods shall not infringe the rights of any third party.

 

  1. Property and Risk

11.1 The Goods shall be at the Buyer’s risk as from delivery and should be insured as such.

11.2 Neither legal nor beneficial title in the Goods delivered shall pass from the Seller to the Buyer until :

11.2.1 the Buyer shall have paid the price plus VAT in full ; and

11.2.2 no other sums whatever shall be due from the Buyer to the Seller.

11.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailey, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured (against ‘all risks’) to the full price and identified as the Seller’s property.

11.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time (provided that the due date for payment (as set out in these Conditions) has expired) to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.

11.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

 

  1. Insolvency of buyer

12.1 This clause applies if:

12.1.1 The Buyer makes any voluntary arrangement with its Creditors or (being an individual firm) becomes bankrupt or (being a Company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction): or

12.1.2 an encumbrance takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or

12.1.3 the Buyer ceases, or threatens to cease, to carry on business; or

12.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.

12.2 If this clause applies then, without prejudice to any other rights or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract but without affecting any other claim, right or remedy of the Seller against the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

 

  1. Cancellation, Suspension and Termination

13.1 If the Buyer shall purport to cancel the whole or any part of the Contract the Seller may be notice in writing to the Buyer elect to treat the contract as repudiated and the Buyer shall thereupon be laible to pay the Seller by way of liquidated damages a sum equal to all expenses incurred by the Seller in connection with the Contract including an appropriate amount in respect of administrative overheads, costs and losses of profit.  The Seller’s reasonable estimate of the expenses incurred shall be final and binding on the parties. Unless otherwise agreed buy the buyer.

13.2 If for any cause whatsoever beyond its control the Seller is unable to make any delivery on the applicable delivery date or perform any of its obligations under the contract the Seller may be notice in writing to the Buyer terminate the Contract or suspend the Contract without liability for any loss or damage thereby incurred by the Buyer.

 

  1. Export Sales

14.1 In respect of Goods outside the United Kingdom (“Export Sales”) the provisions of these conditions shall unless inconsistent with the terms of this clause.

14.2 Unless otherwise specifically agreed in writing between the Seller and the Buyer the Goods shall be delivered to the Buyer by delivery alongside the vessel at the port nominated by the Buyer for delivery on the delivery date.

The Seller shall promptly notify the Buyer that the Goods have been delivered. The Seller shall promptly provide the Buyer with a clean bill of lading in respect of the Goods.

14.3 The Buyer shall reserve the necessary space on board the nominated vessel and give to the Seller all necessary information to enable delivery to take place.  The Buyer shall bear any additional costs caused due to the failure of the nominated vessel to be available to load the Goods on the delivery date.

14.4 Unless otherwise agreed in writing payment shall be made irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by a bank in the United Kingdom acceptable to the Seller on presentation of a bill of lading.

14.5 The Buyer warrants that if an Import Licence or permit is required for the importation of the Goods into the country of destination then such Import Licence or permit has been obtained or will be obtained prior to shipment.

 

  1. Agents

Where the Buyer discloses prior to or during current negotiations his intention to deal with the Seller as an agent of his principal the Seller will only deal with him in that capacity if the Buyer presents the Seller with a letter of authority from his principal. If no letter of authority is provided the Buyer will be deemed to act on his own account.

 

  1. Force Majeure

16.1 In so far as the performance of the Contract may be affected by any strike, any lack of available shipping or transport or materials, any restriction regulation or decree by any local or municipal authority or governmental department or by any clause beyond the Seller’s reasonable control (which shall be construed without reference to the preceding clauses) The Seller may elect as its absolute discretion either:

16.1.1 to terminate the Contract; or

16.1.2 to proceed to perform or continue performance under the Contract within a reasonable time after the termination of such events or circumstances.

16.2 In the event that the Seller makes an election under clause 16.1 the Buyer shall accept the Goods or such part of them as are delivered to it notwithstanding any delay.

  1. No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
  2. If any provision of these Conditions is held by any competent to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
  3. Proper Law

The Contract is and shall be deemed to have been made in England and shall in all respects by governed by English Law and shall be subject to the jurisdiction of the English Courts.

GUARANTEE All our products come with a minimum of a ten year guarantee against mechanical failure
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