TERMS AND CONDITIONS OF SALE
Hydrosense Standard Terms and Conditions of Sale
- Conclusion of the Contract
- Risk and Title to Goods
- Cancellation and Rescheduling
- Returns procedure
- Disclaimer and limitation
- Intellectual Property Rights
- Contract Violations of Buyer
- Force Majeure
- Export & Import Control
1.1 In these conditions
“Seller” means ALBAGAIA LTD, a company registered in Scotland (Registered Number SC204853) whose registered office is at 5th Floor, 125 Princes Street, Edinburgh, EH2 4AD.
“Buyer” means the person, firm, company or organisation who buys the Goods from the Seller.
“Delivery Location” where the Goods are to be shipped, the delivery location set out in the Order or otherwise agreed in accordance with clause 7.1 or, where the Goods are to be collected, the location advised by the Seller under clause 7.2.
“Goods” means any goods (including any instalment thereof or any parts for such goods) which Seller is to supply to Buyer in accordance with the terms of the Contract.
“Order” means the Buyer’s order for the Goods, as set out in the Buyer’s purchase order form.
“Price” means the price of the Goods specified in the Order, or if no price is quoted, the price set out in the Seller’s published price list in force as at the date of delivery.
“Contract” means the contract between Seller and Buyer for the sale and purchase of the Goods in accordance with these Terms and Conditions.
“Terms and Conditions” means these standard terms and conditions of sale.
2.1 These Terms and Conditions apply to the exclusion of any other terms and conditions referred to or offered or relied upon by Buyer (whether implied by trade, custom, practice or course of dealing and whether stated orally or in writing), unless such terms and conditions have been provided in writing by Buyer to Seller and Seller has acknowledged and accepted such terms and conditions in writing signed by a director of Seller.
- Conclusion of the Contract
3.1 Buyer’s Order shall set out the Buyer’s purchase order number and the Seller’s part number. The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Terms and Conditions. Buyer is responsible for ensuring that the terms of the Order are complete and accurate. Contracts for the sale of the Goods are concluded only upon dispatch of the written acknowledgement by Seller of the Order, at which point the Contract shall come into existence.
3.2 Any samples, drawings, descriptive matter or advertising produced by Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are produced for the whole 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.
3.3 A quotation for the Goods given by the Seller shall not constitute an offer. A quotation shall only be valid for a period of  working days from its date of issue.
4.1 The Price is exclusive of VAT or any other applicable taxes and is based on Seller’s current price list (as amended from time to time), or written quotation. Seller reserves the right to increase the Price to take account of any increase in Seller’s costs which are outside of Seller’s direct control at any time prior to delivery of the Goods including but not limited to: (i) a significant increase in the price of fuel, metals, raw materials and production costs; (ii) any request by Buyer to change the delivery date(s), quantities or types of Goods ordered; or (iii) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate or accurate information or instructions. Seller also reserves the right to increase the Price if Buyer fails to take delivery of the Goods on the agreed delivery date or (if none) within 3 months of Seller’s acknowledgement of Buyer’s order.
4.2 Unless otherwise agreed in writing between the parties, the Price quoted is “Ex Works” as defined in the International Chamber of Commerce Incoterms 2010 edition (as amended or replaced from time to time). All delivery costs, including loading, transport, shipment, transport insurance, any Value Added Tax or other tax and charges imposed by the law of Scotland or any other country and any other costs related to delivery of the Goods (“Additional Costs”) shall be met by Buyer or Buyer’s agent. If the Additional Costs are paid by Seller, they shall be invoiced additionally and/or separately from the Price of the Goods and shall be payable by Buyer in accordance with these Terms and Conditions.
5.1 The Price and the Additional Costs must be paid within 30 days of the date of issue of the relevant invoice without any deductions and free of expenses. Time of payment of the Price and the Additional Costs shall be of the essence of the Contract.
5.2 Credit terms and limits shall be entirely at the discretion of Seller and advance payment may be required from Buyer where little or no trading history has been established with Seller.
5.3 If payment of the Price and/or the Additional Costs or any part thereof is not made by the due date for payment, Seller shall be entitled to:
(a) charge interest on the outstanding amount at the Statutory Rate in Scotland. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay interest together with the overdue amount; and/or
(b) require payment of the Price and any Additional Costs payable by Buyer in advance of delivery of any undelivered Goods.
5.4 Payment shall be made in the currency of the invoice, either:
(a) to Seller’s (or any other party assigned the debt in writing) advised bank account as stated on the invoice; OR
(b) by irrevocable Letter of Credit confirmed by a London Clearing Bank to be established in favour of Seller and to be on terms acceptable to and agreed in writing with Seller.
(c) For advance payment, credit or debit card, subject to limits and restrictions imposed by the credit card clearing organisation used by the Seller. The Seller shall only accept and process credit card payments for stock it has available for immediate shipment.
5.5 The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer.
6.1 Seller reserves the right to (i) make any change in the specification of the Goods which does not materially affect the use, performance or Price thereof; and (ii) amend the specification of the Goods if required by any applicable statutory or regulatory requirements. Any such change shall not invalidate any order placed with Seller or impose any liability on Seller.
7.1 Where the Goods are to be shipped, the Seller shall deliver the Goods to the location set out in the Order or such other location as the parties may agree at any time after the Seller notifies the Buyer that the Goods are ready.
7.2 Where the Goods are to be collected by the Buyer, the Seller shall collect the Goods from the Seller’s premises (as advised by the Seller prior to delivery) within  business days of the Seller notifying the Buyer that the Goods are ready.
7.3 Any date(s) or time(s) quoted or acknowledged for delivery of the Goods by Seller are estimates only and Seller shall not be liable for failure to deliver the Goods on or within such date(s) or time(s) nor shall Buyer be entitled to reject any consignment of the Goods or to treat the Contract as repudiated in the event of such failure. Time shall not be of the essence in respect of quoted delivery dates or times. The Seller shall not be liable for any delay in delivery of the Goods that is caused by a force majeure event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
7.4 Unless otherwise agreed in writing with Seller, Buyer shall be bound to accept partial deliveries of the Goods or delivery of the Goods by instalments and the Terms and Conditions herein contained shall apply to such partial delivery or delivery by instalment. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Seller to deliver any one or more of the instalments in accordance with these Terms and Conditions or any claim by Buyer in respect of any one or more instalments shall not entitle Buyer to treat the Contract as a whole as repudiated.
7.5 Delivery is completed on the completion of unloading (where the Goods are to be shipped) or loading (where the Goods are to be collected) at the Delivery Location. Unless otherwise agreed in writing, Seller reserves the right to ship Goods in advance of any delivery date acknowledged by Seller.
7.6 Where the Goods are being shipped, if the Goods are not received by Buyer within 7 days of the date on which Buyer receives notification from Seller of the relevant shipping information, Buyer must advise Seller immediately.
7.7 Buyer shall notify Seller of any visible defects in the Goods within 7 days of receipt. Goods delivered to Buyer which are defective shall be taken and kept in custody by Buyer until Seller has disposed of, or has given instructions to Buyer to dispose of, the Goods. Any claim for breach of warranty by Buyer in respect of the Goods shall remain unaffected.
7.8 If Buyer fails to take or accept delivery of the Goods within 7 days after receiving notice from Seller that they are ready, Seller may store them at Buyer’s expense and charge the Buyer for all related costs (including insurance) until delivery takes place. If 10 days after the day on which the Seller notified the Buyer that the Goods were ready for delivery the Buyer has not taken or accepted delivery of them, the Seller may resell or otherwise dispose of part or all of the Goods.
7.9 Notification of shortages or incorrect shipments should be received in writing within 7 days of receipt of the Goods into Buyer’s premises. Seller will not be liable for replacement parts if Buyer fails to notify in accordance with this paragraph.
7.10 Seller reserves the right to allocate Goods amongst its customers if there is a shortage of Goods.
7.11 Where Goods are paid for in advance, the Goods will normally be shipped within 2 working days of receiving payment, unless agreed otherwise with the Buyer.
7.12 Once the shipment has been packed and dispatched, Seller will send a tracking number to the Buyer. It is the Buyer’s duty to track the delivery of the shipment.
7.13 Seller can arrange to ship to third parties, but Buyer must supply the data of the person/company paying the duties in the destination country. Custom offices will require the following information from the party paying any duties: Name of the company, Name of the contact person, Complete address (street, suburb, county, postcode and country), Telephone and e-mail address. In addition and due to national and international legislation, the commercial invoice must contain the total declared value of the goods to be delivered.
7.14 Where the Seller requires, for a particular purpose, to disclose any information regarding the components or materials used in the Goods, or any other commercially sensitive information regarding the Goods, (for example, where necessary in order to meet with any customs requirements), then any such disclosure will be in strict confidence and the Buyer agrees that the use of such information is strictly limited to the specific purpose stated.
- Risk and Title to Goods
8.1 The risk in the Goods will pass to Buyer on commencement of loading for transit at the Seller’s premises.
8.2 The title in the Goods will not pass to Buyer until payment of the Price and any Additional Costs has been made in full by Buyer and until such time:-
(a) Buyer acknowledges that he is in possession of the Goods to the order of Seller and shall hold the Goods on behalf of Seller. If the Goods are resold or otherwise disposed of by Buyer, Buyer will ensure that the entire proceeds of the sale are held on behalf of Seller and shall not be mixed with any other monies or paid into an overdrawn bank account and shall at all times be identifiable as monies belonging to Seller; and
(b) Buyer shall be obliged to keep the Goods free from the rights of third parties and shall not pledge or purport to transfer title to the Goods, as security; and
(c) Seller retains the right to recover the Goods from Buyer’s premises (and for this purpose may enter into Buyer’s premises) at Buyer’s expense.
8.3 Nothing in this Condition 8 shall confer any right upon Buyer to return the Goods sold to Seller.
- Cancellation and Rescheduling
9.1 Any request for cancellation or rescheduling must be made in writing (stating the nature and detailed reasons for the request). Cancellation and rescheduling requests cannot be accepted within the 30 day period prior to the scheduled delivery date. Outside of that 30 day period, Seller reserves the right to refuse any request for cancellation or rescheduling. Should the request be accepted, Seller reserves the right to invoice Buyer for costs and losses associated with the cancellation or rescheduling up to the Price.
10.1 Seller warrants to Buyer that for 12 months from the date of manufacture the Goods will
(a) be free from material defects caused by poor workmanship or faulty materials; and
(b) conform in all material respects to their published specification in effect at the date of shipment. Under this warranty, Seller’s liability shall be limited solely to delivering replacement goods, making good such defective Goods or issuing a credit note (for any monies already paid to Seller in respect of the Goods) at Seller’s option provided that:
(i) Buyer notifies Seller in writing within 14 days of discovering such defects;
(ii) the defective Goods or a representative sample are returned to Seller for inspection at Buyer’s expense; and
(iii) Seller determines that the Goods affected are non-conforming with the above warranty and were not damaged as a result of misuse, neglect, accident, improper storage, installation, handling or repair or any other reason which is not attributable to Seller.
10.2 Seller warrants to Buyer that the Goods will have a minimum shelf life of 6 months from the date of shipment or collection (as applicable).
10.3 Buyer shall pay to Seller the cost (as certified by Seller) of any examination and investigation of returned Goods where in its reasonable opinion Seller does not believe that such Goods are defective.
10.4 The warranty in Condition 10.1 applies only to Goods which have been purchased through authorised sales channels.
- Returns procedure
11.1 Buyer must not return any Goods without Seller’s prior written authorisation and a return material authorisation (RMA) number. The RMA number must be quoted on all correspondence. All Goods returned must be appropriately packaged for transit. For Goods intended for analysing a sample, the Seller may request that the Buyer also supplies samples of material for analysis – suitably packaged and with appropriate documentation for shipping and health and safety purposes. Such details to be established prior to returning any Goods.
- Disclaimer and limitation
12.1 NO GOODS SUPPLIED BY THE SELLER ARE INTENDED FOR ANY MEDICAL DIAGNOSTIC PURPOSE. GOODS INTENDED FOR THE DETECTION OF PATHOGENS SHOULD NOT BE RELIED UPON AS THE ONLY METHOD OF PREVENTING ILLNESS OR INFECTION.
12.2 EXCEPT AS SET FORTH IN 10.1, THE SELLER MAKES NO WARRANTIES OR REPRESENTATIONS REGARDING PERFORMANCE OF THE GOODS, OR THAT THE GOODS ARE MERCHANTABLE OR FIT FOR A PARTICULAR PURPOSE; AND TO THE EXTENT PERMITTED BY LAW EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, CONDITIONS AND REPRESENTATIONS, EXPRESS OR IMPLIED.
12.3 SUBJECT TO CONDITION 12.5 THE SELLER SHALL UNDER NO CIRCUMSTANCES WHATSOVER BE LIABLE TO THE BUYER, WHETHER IN CONTRACT, DELICT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE FOR ANY LOSS OF PROFIT, OR ANY INDIRECT OR CONSEQUENTIAL LOSS ARISING UNDER OR IN CONNECTION WITH THE CONTRACT.
12.4 SUBJECT TO CONDITION 12.5 IN NO EVENT SHALL THE TOTAL LIABILITY OF SELLER FOR ANY OTHER LOSSES ARISING UNDER OR IN CONNECTION WITH THE CONTRACT (WHETHER IN CONTRACT, DELICT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE) EXCEED THE AGGREGATE SUM PAID TO SELLER BY BUYER IN RESPECT OF THE GOODS WHICH GIVE RISE TO SUCH CLAIM.
12.5 Nothing in these Terms and Conditions limits or excludes Seller’s liability for (i) death or personal injury caused by Seller’s negligence; (ii) fraud or fraudulent misrepresentation; (iii) breach of the terms implied by section 12 of the Sale of Goods Act 1979 (title and quiet possession); or (iv) any other liability that cannot be limited or excluded by law.
- Intellectual Property Rights
13.1 Buyer warrants that any design or instruction furnished or given by Buyer to Seller shall not be such as will cause Seller to infringe any patent, copyright, registered design or trade mark or any other intellectual property rights in the execution of Buyer’s order.
13.2 These Terms and Conditions and/or the Contract and/or the giving of technical assistance or other information by Seller shall not grant to, convey or confer upon Buyer or Buyer’s customer or upon anyone claiming under Buyer a licence, express or implied, under any patent rights, copyrights, trade marks, registered designs or other intellectual property rights of Seller covering or relating to any combination, machine or process in which the Goods might be or are used or for any product of which the Goods might form part.
- Contract Violations of Buyer
14.1 Without limiting its other rights or remedies, Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if
(a) the Buyer fails to pay any amount due under the Contract on the due date for payment;
(b) Buyer commits a material breach of any other term of the Contract and (if such breach is remediable) fails to remedy that breach within 14 days of Seller’s notice to do so;
(c) 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), being wound up (whether voluntarily or by order of the course, 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;
(d) the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(e) the Buyer’s financial position deteriorates to such an extent that in the Seller’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
14.2 Without limiting its other rights or remedies, the Seller may suspend provision of the Goods under the Contract or any other contract between the Seller and the Buyer if the Buyer becomes subject to any of the events listed in condition 14.1 or the Seller reasonably believes that the Buyer is about to become subject to any of them.
14.4 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.
14.5 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
14.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
- Force Majeure
15.1 Seller shall not be under any liability of any kind for non-performance in whole or in part of its obligations under the Contract due to causes beyond the reasonable control either of Seller or Seller’s suppliers including but not limited to any acts of God, government restriction, wars and other hostilities, insurrections, riots, strikes (other than strikes by Seller’s employees), lock-outs, fire, flood, earthquake and other natural disasters, shortage of labour, fuel, machinery and materials, and delays in delivery or defaults on the part of Seller’s suppliers. In any such event Seller may without liability, cancel or vary the terms of the Contract including but not limited to extending the time for performing the Contract for a period at least equal to the time lost by reason of such event.
- Export & Import Control
16.1 If, at the time or times of Seller’s performance hereunder, an export licence is required for Seller lawfully to export the Goods or technical data, then the issuance of the appropriate licences to Seller or its suppliers shall constitute a condition precedent to Seller’s obligations hereunder.
16.2 Buyer shall comply with all applicable export laws, regulations and orders and shall not by any means or method export, re-export, resell, ship or divert or cause to be exported, re-exported, resold, shipped, or diverted, directly or indirectly, any Goods or technology of Seller except as permitted by and in accordance with applicable laws and regulations.
16.3 If, in order to import, use or resell the Goods the Buyer requires any licence, permit or other such authority, from any government or official department or requires any modification to the labelling or packaging of the product to conform to any local laws or requirements (other than those of the United Kingdom) which has not been agreed as part of the specification of the Goods then such modifications to the labelling and/or the obtaining of any necessary permits, licences or consents shall be solely the responsibility of the Buyer and shall not form a condition precedent to the Contract.
18.1 In the event the parties are unable to resolve a dispute between them arising out of or relating to the Contract, and except for claims for interdict or other similar relief, the parties will attempt to settle all disputes, controversies, or claims arising out of or in connection with the Contract in good faith by mediation in accordance with the Centre for Effective Dispute Resolution (“CEDR”) Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing to the other party, requesting a mediation. A copy of such notice should be sent to CEDR. The mediation will start not later than 14 days after the date of the notice. If the dispute is not resolved by mediation within 14 days of the commencement of the mediation or within such further period as the parties may agree, the dispute shall be submitted to arbitration under the Rules of the International Chamber of Commerce (“ICC Rules”). The arbitration shall be conducted in Edinburgh, Scotland unless otherwise agreed to by both parties, and shall be governed by the laws of Scotland. The Contract will not be covered by the U.N. Convention on Contracts for the International Sale of Goods. There shall be a sole arbitrator to be nominated by agreement between the parties, failing which within twenty one days of the date of the Request for Arbitration, to be appointed in accordance with the ICC Rules. The arbitration award shall be final, conclusive and binding on the parties, and judgment thereon may be entered and enforced in any court having jurisdiction.
18.2 The Contract shall be governed by and construed in accordance with the law of Scotland
18.3 Buyer may not assign any of its rights hereunder without Seller’s prior written consent.
18.4 Seller reserves the right to subcontract or assign the performance of all or part of the Contract.
18.5 The invalidity of one or more provisions of these Terms and Conditions shall not affect the validity of the remaining provisions.
18.6 Failure, delay or neglect by Seller to exercise any right contained in these Terms and Conditions will not prejudice Seller’s rights to take subsequent action.
18.7 No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
18.8 This 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. 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 this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.