Terms and Conditions for the Supply of Products
The customer’s attention is drawn in particular to the provisions of clause 10.
1.1 Definitions. In these Conditions, the following definitions apply:
a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
the terms and conditions set out in this document as amended from time to time in accordance with clause 12.6;
the contract between Kaisertech and the Customer for the sale and purchase of the Products in accordance with these Conditions;
the person or firm who purchases the Products from Kaisertech for business purposes;
"Force Majeure Event"
has the meaning given in clause 11;
Kaisertech Limited (registered in England and Wales with company number 03598848).
the products (or any part of them) set out in the Order;
the Customer’s order for the Products, as set out [in the Customer’s purchase order form or overleaf or in the Customer’s written acceptance of Kaisertech’s quotation or in the Customer’s purchase order form, the Customer’s written acceptance of Kaisertech’s quotation, or overleaf, as the case may be;
any specification for the Products, including any related plans and drawings, that is agreed in writing by the Customer and Kaisertech;
1.2 Construction. In these Conditions, the following rules apply:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors or permitted assigns.
1.2.3 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.2.4 Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.2.5 A reference to writing or written includes faxes [and emails].
2 Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Products in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Customer are complete and accurate.
2.3 The Order shall only be deemed to be accepted when Kaisertech issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Kaisertech which is not set out in the Contract.
2.5 Any samples, drawings, descriptive matter, or advertising produced by Kaisertech and any descriptions or illustrations contained in Kaisertech’s catalogues or brochures or as set out on the Website are produced for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Contract or have any contractual force.
2.6 A quotation for the Products given by Kaisertech shall not constitute an offer. A quotation shall only be valid for a period of 14 Business Days from its date of issue.
3.1 The Products are described on Kaisertech’s catalogue or on the Website as modified by any applicable Specification.
3.2 To the extent that the Products are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify Kaisertech against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by Kaisertech in connection with any claim made against Kaisertech for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with Kaisertech’s use of the Specification. This clause 3.2 shall survive termination of the Contract.
3.3 Kaisertech reserves the right to amend the specification of the Products if required by any applicable statutory or regulatory requirements.
4.1 Kaisertech shall ensure that:
4.1.1 each delivery of the Products is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Kaisertech reference numbers, the type and quantity of the Products (including the code number of the Products, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Products remaining to be delivered; and
4.1.2 if Kaisertech requires the Customer to return any packaging materials to Kaisertech, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Kaisertech shall reasonably request. Returns of packaging materials shall be at Kaisertech’s expense.
4.2 Kaisertech shall deliver the Products to the location set out in the Order or such other location as the parties may agree ("Delivery Location") at any time after Kaisertech notifies the Customer that the Products are ready.
4.3 Delivery of the Products shall be completed on the Products’ arrival at the Delivery Location.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Kaisertech shall not be liable for any delay in delivery of the Products that is caused by a Force Majeure Event or the Customer’s failure to provide Kaisertech with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.5 If Kaisertech fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement Products of similar description and quality in the cheapest market available, less the price of the Products. Kaisertech shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide Kaisertech with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
4.6 If the Customer fails to accept delivery of the Products within three Business Days of Kaisertech notifying the Customer that the Products are ready, then, except where such failure or delay is caused by a Force Majeure Event or Kaisertech’s failure to comply with its obligations under the Contract:
4.6.1 delivery of the Products shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Kaisertech notified the Customer that the Products were ready; and
4.6.2 Kaisertech shall store the Products until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 If 10 Business Days after the day on which Kaisertech notified the Customer that the Products were ready for delivery the Customer has not accepted delivery of them, Kaisertech may resell or otherwise dispose of part or all of the Products and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Products or charge the Customer for any shortfall below the price of the Products.
4.8 Kaisertech may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 The Customer may cancel any Order (other than for Sale Products and Products made to a Specification) within 30 calendar days of the date of the Order by contacting Kaisertech [ADD LINK to RMA] subject to clause 5.2.
5.2 To be eligible for a return the Products must be unused and returned to Kaisertech in their original packaging. Any Order which relates to Products which are made to the Customer’s Specification or any Sale Products cannot be cancelled. For each return Kaisertech will require evidence of the original proof of purchase.
5.3 If the Customers cancels the Order and the Products have not been dispatched and the Customer has made a payment in advance for Products that have not been delivered, Kaisertech will refund these amounts to the Customer and any delivery charges paid.
5.4 If the Customer cancels the Order and Kaisertech have already despatched the Products, Kaisertech will not be able to cancel the Order until it is delivered. In this case, Kaisertech will charge the customer the cost of collection of the Products or the Customer will have to pay the cost of returning the Products. Once the Product has been returned to and inspected by Kaisertech, Kaisertech will send the Customer an email notification that the Product has been received and if the returned has been accepted. Following acceptance of the return Kaisertech shall (if applicable) refund for the Customer for the Products themselves, but Kaisertech will not refund any charges for delivery and any charge for collection will be deducted from the refund due to the Customer.
6.1 Kaisertech warrants that on delivery the Products shall:
6.1.1 conform with their description and any applicable Specification;
6.1.2 be free from material defects in design, material and workmanship; and
6.1.3 be fit for any purpose held out by Kaisertech.
6.2 Subject to clause 6.3, if:
6.2.1 the Customer gives notice in writing to Kaisertech within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in clause 6;
6.2.2 Kaisertech is given a reasonable opportunity of examining such Products; and
6.2.3 the Customer (if asked to do so by Kaisertech) returns such Products to Kaisertech’s place of business at the Customer’s cost,
Kaisertech shall, at its option, repair or replace the defective Products, or refund the price of the defective Products in full.
6.3 Kaisertech shall not be liable for Products’ failure to comply with the warranty set out in clause 6 in any of the following events:
6.3.1 the Customer makes any further use of such Products after giving notice in accordance with clause 6.2;
6.3.2 the defect arises because the Customer failed to follow Kaisertech’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Products or (if there are none) good trade practice regarding the same;
6.3.3 the defect arises as a result of Kaisertech following any drawing, design or Specification supplied by the Customer;
6.3.4 the Customer alters or repairs such Products without the written consent of Kaisertech;
6.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
6.3.6 the Products differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.4 Except as provided in this clause 5, Kaisertech shall have no liability to the Customer in respect of the Products’ failure to comply with the warranty set out in clause 6.
6.5 The terms implied by sections 13 to 15 of the Sale of Products Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
6.6 These Conditions shall apply to any repaired or replacement Products supplied by Kaisertech.
7 Title and risk
7.1 The risk in the Products shall pass to the Customer on completion of delivery.
7.2 Title to the Products shall not pass to the Customer until Kaisertech receives payment in full (in cash or cleared funds) for the Products.
7.3 Until title to the Products has passed to the Customer, the Customer shall:
7.3.1 store the Products separately from all other Products held by the Customer so that they remain readily identifiable as Kaisertech’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 Kaisertech immediately if it becomes subject to any of the events listed in clause 9.2; and
7.3.5 give Kaisertech such information relating to the Products as Kaisertech may require from time to time.
7.4 If before title to the Products passes to the Customer the Customer becomes subject to any of the events listed in clause 9.2, then, without limiting any other right or remedy Kaisertech may have:
7.4.1 the Customer’s right to resell the Products or use them in the ordinary course of its business ceases immediately; and
7.4.2 Kaisertech may at any time:
(a) require the Customer to deliver up all Products in its possession which have not been resold, or irrevocably incorporated into another product; and
(b) if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them.
8 Price and payment
8.1 The price of the Products shall be the price set out in the Order, or, if no price is quoted, the price set out in Kaisertech’s published price list in force as at the date of delivery.
8.2 Kaisertech may, by giving notice to the Customer at any time before delivery, increase the price of the Products to reflect any increase in the cost of the Products that is due to:
8.2.1 any factor beyond Kaisertech’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
8.2.2 any request by the Customer to change the delivery date(s), quantities or types of Products ordered, or the Specification; or
8.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give Kaisertech adequate or accurate information or instructions.
8.3 The price of the Products is exclusive of the costs and charges of packaging, insurance and transport of the Products, which shall be invoiced to the Customer.
8.4 The price of the Products is exclusive of amounts in respect of value added tax ("VAT"). The Customer shall, on receipt of a valid VAT invoice from Kaisertech, pay to Kaisertech such additional amounts in respect of VAT as are chargeable on the supply of the Products.
8.5 Kaisertech may invoice the Customer for the Products on acceptance of the Order or at any time after the completion of delivery.
8.6 The Customer shall pay the invoice in full and in cleared funds within 20 Business Days of the date of the invoice. Payment shall be made to the bank account nominated in writing by Kaisertech. Time of payment is of the essence.
8.7 If the Customer fails to make any payment due to Kaisertech under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above HSBC's base rate from time to time. 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 Customer shall pay the interest together with the overdue amount.
8.8 The Customer 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). Kaisertech may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by Kaisertech to the Customer.
9 Termination and suspension
9.1 If the Customer becomes subject to any of the events listed in clause 9.2, Kaisertech may terminate the Contract with immediate effect by giving written notice to the Customer.
9.2 For the purposes of clause 9.1, the relevant events are:
9.2.1 the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
9.2.2 the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
9.2.3 (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
9.2.4 (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
9.2.5 (being a company) the holder of a qualifying floating charge over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
9.2.6 a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
9.2.7 (being an individual) the Customer is the subject of a bankruptcy petition or order;
9.2.8 a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
9.2.9 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.2.1 to clause 9.2.6 (inclusive);
9.2.10 the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
9.2.11 the Customer’s financial position deteriorates to such an extent that in Kaisertech’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
9.2.12 (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
9.3 Without limiting its other rights or remedies, Kaisertech may suspend provision of the Products under the Contract or any other contract between the Customer and Kaisertech if the Customer becomes subject to any of the events listed in clause 9.2.1 to clause 9.2.12, or Kaisertech reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
9.4 On termination of the Contract for any reason the Customer shall immediately pay to Kaisertech all of Kaisertech’s outstanding unpaid invoices and interest.
9.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
9.6 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
10 Limitation of liability
10.1 Nothing in these Conditions shall limit or exclude Kaisertech’s liability for:
10.1.1 death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
10.1.2 fraud or fraudulent misrepresentation;
10.1.3 breach of the terms implied by section 12 of the Sale of Products Act 1979;
10.1.4 defective products under the Consumer Protection Act 1987; or
10.1.5 any matter in respect of which it would be unlawful for Kaisertech to exclude or restrict liability.
10.2 Subject to clause 10.1:
10.2.1 Kaisertech shall under no circumstances whatever be liable to the Customer, whether in contract, tort (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; and
10.2.2 Kaisertech’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Products.
11 Force majeure
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A "Force Majeure Event" means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
12.1 Assignment and other dealings.
12.1.1 Kaisertech may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.
12.1.2 The Customer may not assign, transfer, mortgage, charge, subcontract, 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 Kaisertech.
12.2.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or email.
12.2.2 A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2.1; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one Business Day after transmission.
12.2.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.3.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
12.3.2 If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.4 Waiver. A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.5 Third party rights. A person who is not a party to the Contract shall not have any rights to enforce its terms.
12.6 Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by Kaisertech.
12.7 Governing law. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the law of England and Wales.
12.8 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).