TERMS AND CONDITIONS FOR THE SALE OF GOODS
Application and entire agreement
These Terms and Conditions will apply to the purchase of the Goods detailed in our sales order (Goods) by the buyer (you) from Keyflow (UK) Ltd a company registered in England and Wales under number 07895774 whose registered office is at Malvern View Business Park, Stella Way, Bishops Cleeve, Cheltenham, Gloucestershire, GL52 7DQ (we or us).
These Terms and Conditions apply to our contract with you to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
When you order the Goods, your order constitutes an offer by you to purchase the Goods in accordance with these Terms and Conditions. You are responsible for ensuring that the terms of your order are complete and accurate.
Your order shall only be deemed to be accepted when we issue a written acceptance of the order, in the form of our sales order, at which point the contract between us shall come into existence (Contract).
A quotation for the Goods given by us shall not constitute an offer.
Interpretation
A "business day" means any day other than a Saturday, Sunday or bank holiday in England and Wales.
A “Force Majeure Event” means any circumstance not within our reasonable control, including: (a) acts of God, flood, storm, drought, earthquake or other natural disaster; (b) epidemic or pandemic; (c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (d) nuclear, chemical or biological contamination or sonic boom; (e) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; (f) collapse of buildings, breakdown of plant or machinery, fire, explosion or accident; (g) any labour or trade dispute, difficulty or increased expense in obtaining workers, materials or transport, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this clause, or companies in the same Group as that party); (h) non-performance by suppliers or subcontractors (other than by companies in the same Group as the party seeking to rely on this clause); and (i) interruption or failure of utility service.
The headings in these Terms and Conditions are for convenience only and will not affect their interpretation.
Words imparting the singular number include the plural and vice-versa.
Goods
The description of the Goods is set out in our sales documentation, unless expressly changed in our sales order. In accepting the quotation, you acknowledge that you have not relied upon any statement, promise or other representations about the Goods by us. Descriptions of the Goods set out in our sales documentation are intended as a guide only.
We will make any changes to the specification of the Goods which are required to conform to any applicable safety or other statutory or regulatory requirements.
Price
The price (Price) of the Goods is set out in our sales order current at the date of your order or such other price as we may agree in writing.
If the cost of the Goods to us increases due to any factor beyond our control including, but not limited to, material costs, labour costs, alteration of exchange rates or duties, or changes to delivery rates, we can increase the Price prior to delivery.
Any increase in the Price under the clause above will only take place after we have told you about it.
You may be entitled to discounts. Any and all discounts will be at our discretion.
The Price includes the costs of packaging and order preparation, but excludes the costs of transportation and delivery.
The Price is exclusive of any applicable VAT and other taxes or levies which are imposed or charged by any competent authority.
Cancellation and alteration
Details of the Goods as described in the clause above (Goods) and set out in our sales documentation are subject to alteration without notice and are not a contractual offer to sell the Goods which is capable of acceptance.
Either of us can cancel your order for any reason prior to our providing written acceptance (or rejection) of your order.
Payment
We will invoice you for the Price either:
on or at any time after dispatch of the Goods; or
where the Goods are to be collected by you or where you wrongfully do not take delivery of the Goods, at any time after we have notified you that the Goods are ready for collection or we have tried to deliver them.
You must pay the Price within any credit terms agreed between us and stated on your invoice.
You must make payment even if delivery has not have taken place and / or the title in the Goods has not passed to you.
If you do not pay within the period set out above, we will suspend any further deliveries to you and without limiting any of our other rights or remedies for statutory interest, charge you interest at the rate of 4% per annum above the base rate of the Bank of England from time to time on the amount outstanding until you pay in full.
Time for payment will be of the essence of the Contract.
All payments must be made in British Pounds or the currency in which your invoice is written unless otherwise agreed in writing between us.
Both parties must pay all amounts due under these Terms and Conditions in full without any deduction or withholding except as required by law and neither party is entitled to assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any such amount in whole or in part.
Delivery
Where we arrange for the delivery of the Goods, this will be to the address specified in the sales order, or to another location we agree in writing.
If you do not specify a delivery address or if we both agree, you must collect the Goods from our premises.
Subject to the specific terms of any special delivery service, delivery can take place at any time of the day and must be accepted at any time between 8 am to 8 pm.
If you do not take delivery of the Goods we may, at our discretion and without prejudice to any other rights:
store or arrange for the storage of the Goods and will charge you for all associated costs and expenses including, but not limited to, transportation, storage and insurance; and / or
make arrangements for the redelivery of the Goods and will charge you for the costs of such redelivery; and/or
after 10 business days, resell or otherwise dispose of part or all of the Goods and charge you for any shortfall below the price of the Goods.
If redelivery is not possible as set out above, you must collect the Goods from our premises and will be notified of this. We can charge you for all associated costs including, but not limited to, storage and insurance.
Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. We will not be liable for any delay in delivery of the Goods that is caused by a circumstance beyond our control or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
We can deliver the Goods by instalments, which will be invoiced and paid for separately. Each instalment is a separate contract. Any delay in delivery or defect in an instalment will not entitle you to cancel any other instalment.
Inspection and acceptance of Goods
You must inspect the Goods on delivery or collection.
If you identify any damages or shortages, you must inform us in writing within 5 days of delivery, providing details.
Other than by agreement, we will only accept returned Goods if we are satisfied that those Goods are defective and if required, have carried out an inspection.
Subject to your compliance with this clause and/or our agreement, you may return the Goods and we will, as appropriate, repair, or replace, or refund the Goods or part of them.
We will be under no liability or further obligation in relation to the Goods if:
if you fail to provide notice as set above; and/or
you make any further use of such Goods after giving notice under the clause above relating to damages and shortages; and/or
the defect arises because you did not follow our oral or written instructions about the storage, commissioning, use and maintenance of the Goods; and/or
the defect arises from normal wear and tear of the Goods; and/or
the defect arises from misuse or alteration of the Goods, negligence, wilful damage or any other act by you, your employees or agents or any third parties.
You bear the risk and cost of returning the Goods.
Acceptance of the Goods will be deemed to be upon inspection of them by you and in any event within 5 days after delivery.
Risk and title
The risk in the Goods will pass to you on completion of delivery. Where the Contract incorporates the Incoterms 2020, the risk in the Goods will pass in accordance with the Incoterms agreed between us that apply to the order for the Goods, which will either be ex works (EXW), free alongside ship (FAS), free on board (FOB) or cost and freight (CFR).
Title to the Goods will not pass to you until we have received payment in full (in cash or cleared funds) for: (a) the Goods and/or (b) any other goods or services that we have supplied to you in respect of which payment has become due.
Until title to the Goods has passed to you, you must (a) hold the Goods on a fiduciary basis as our bailee; and/or (b) store the goods separately and not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; and/or (c) keep the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery.
As long as the Goods have not been resold, or irreversibly incorporated into another product, and without limiting any other right or remedy we may have, we can at any time ask you to deliver up the Goods and, if you fail to do so promptly, enter any of your premises or of any third party where the Goods are stored in order to recover them.
Termination
We can terminate the sale of Goods under the Contract where:
you commit a material breach of your obligations under these Terms and Conditions;
you are or become or, in our reasonable opinion, are about to become the subject of a bankruptcy order or take advantage of any other statutory provision for the relief of insolvent debtors;
you enter into a voluntary arrangement under Part 1 of the Insolvency Act 1986, or any other scheme or arrangement is made with your creditors; or
you convene any meeting of your creditors, enter into voluntary or compulsory liquidation, have a receiver, manager, administrator or administrative receiver appointed in respect of your assets or undertakings or any part thereof, any documents are filed with the court for the appointment of an administrator, notice of intention to appoint an administrator is given by you or any of your directors or by a qualifying floating charge holder (as defined in para. 14 of Schedule B1 of the Insolvency Act 1986), a resolution is passed or petition presented to any court for the winding up of your affairs or for the granting of an administration order, or any proceedings are commenced relating to your insolvency or possible insolvency.
Limitation of liability
Our liability under the Contract, and in breach of statutory duty, and in tort, misrepresentation or otherwise will be limited to this clause.
Subject to the clauses above on Inspection and Acceptance and Risk and Title, all warranties, conditions or other terms implied by statute or common law (save for those implied by Section 12 of the Sale of Goods Act 1979) are excluded to the fullest extent permitted by law.
If we do not deliver the Goods, our liability is limited, subject to the clause below, to the costs and expenses incurred by you in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
Our total liability will not, in any circumstances, exceed the total amount of the Price payable by you.
We will not be liable (whether caused by our employees, agents or otherwise) in connection with the Goods, for:
any indirect, special or consequential loss, damage, costs, or expenses; and/or
any loss of profits; loss of anticipated profits; loss of business; loss of data; loss of reputation or goodwill; business interruption; or, other third party claims; and/or
any failure to perform any of our obligations if such delay or failure is due to any cause beyond our reasonable control; and/or
any losses caused directly or indirectly by any failure or breach by you in relation to your obligations; and/or
any loss relating to the choice of the Goods and how they will meet your purpose or the use by you of the Goods supplied.
The exclusions of liability contained within this clause will not exclude or limit our liability for death or personal injury caused by our negligence; or for any matter for which it would be illegal for us to exclude or limit our liability; and for fraud or fraudulent misrepresentation.
Communications
All notices under these Terms and Conditions must be in writing and signed by, or on behalf of, the party giving notice (or a duly authorised officer of that party).
Notices will be deemed to have been duly given:
when delivered, if delivered by courier or other messenger (including registered mail) during the normal business hours of the recipient;
when sent, if transmitted by fax or email and a successful transmission report or return receipt is generated;
on the fifth business day following mailing, if mailed by national ordinary mail; or
on the tenth business day following mailing, if mailed by airmail.
All notices under these Terms and Conditions must be addressed to the most recent address, email address or fax number notified to the other party.
Force majeure
If we are prevented, hindered or delayed in or from performing any of our obligations under this agreement by a Force Majeure Event, we shall not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
We shall:
as soon as reasonably practicable after the start of the Force Majeure Event, but no later than five days from its start, notify you in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on our ability to perform any of our obligations under the Contract; and
use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of our obligations.
If the Force Majeure Event prevents, hinders or delays our performance of our obligations for a continuous period of more than two months, we may terminate the Contract by giving 14 days’ written notice to you.
No Waiver
No waiver by us of any breach of these Terms and Conditions by you shall be considered as a waiver of any subsequent breach of the same or any other provision.
Severance
If one or more of these Terms and Conditions is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of these Terms and Conditions (which will remain valid and enforceable).
Law and jurisdiction
This Agreement shall be governed by and interpreted according to the law of England and Wales and all disputes arising under the Agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English and Welsh courts.
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