Terms and Conditions of Sales
In these conditions:
“Pyronix” or “the Company” means Pyronix Limited or, where one of its group companies provides goods or services, that company (for the purposes of those goods or services);
the “Buyer” means the company or business which placed an order accepted by Pyronix;
“Force Majeure Event” has the meaning given in clause 9.2;
“goods” means products supplied in accordance with an accepted order (including (but not limited to) raw materials, finished or part-finished materials or articles, machinery, parts, spares, and commodities); and
“services” means any assistance (other than the provision of goods) supplied in accordance with an accepted order.
Buyers within the UK can place orders by fax or e-mail to our sales team, whose contact details are: (fax) 01709 533 429 or email@example.com or by such other methods of placing orders as we make available to you from time to time.
Buyers outside the UK can place orders through the website (www.pyronix.com) or e-mail to our sales team, whose contact details are firstname.lastname@example.org
Orders from, and quotations provided to, Buyers are not binding on Pyronix and a contract will only come into being on the demonstration of acceptance of the order by Pyronix dispatching all or part of it.
These terms and conditions and any written variations agreed by Pyronix, together with an accepted order constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Pyronix which is not set out in this contract. These terms and conditions apply to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
Quotations given by Pyronix shall remain open for orders to be placed on them for a period of 30 days from the date of the quotation, unless in the quotation some other period is specified and unless the quotation is withdrawn by Pyronix.
Any samples, drawings, descriptive matter, or advertising produced by Pyronix and any descriptions or illustrations contained in the Pyronix catalogues, brochures and websites are produced for the sole purpose of giving an approximate idea of the goods described in them. They shall not form part of any contract for the supply of those goods or have any contractual force.
These conditions apply to services provided by Pyronix in the same way as they apply to goods supplied by Pyronix.
Goods or services are sold to Buyers by reference to the price list made available by Pyronix to that Buyer current at the date the order is placed (and in the currency or currencies specified in that price list), unless Pyronix has separately provided a quotation, in which case that will take precedence.
Note that each price list is only valid:
for the Buyer that Pyronix has provided access to it;
in the currency specified in it;
until it is withdrawn or superseded by Pyronix; and
is subject to the payment terms agreed between Pyronix and that Buyer;
Where a price list is to be withdrawn or updated Pyronix tries to give reasonable advance notice of any changes. However, while this is frequently between 1 and 3 months for the domestic UK market, this can be substantially less for international Buyers, where prices may need to be revised due to changes in exchange rates.
All goods are sold “ex works” unless we agree otherwise. If Pyronix arranges or undertakes the carriage, freight, insurance and any other transport, the Buyer agrees:
to bear those additional costs; and
it does not affect the passing of risk in the ordered goods to the Buyer under these terms.
The price lists are exclusive of any Value Added Tax or other tax, duty or charge relating to the transportation, insurance, delivery, export or import of the goods or performance of the services (whether initially charged on or payable by Pyronix or the Buyer). Any such additional costs are to be borne by the Buyer and will be added to the price as appropriate.
Terms of Payment
Unless expressly agreed in writing payment shall be made without any deduction or set off or deferment on account of any disputes or cross claims whatsoever within any time period agreed between Pyronix and the Buyer following the date of the invoice for the goods.
Where full payment is not received by the due date interest shall accrue on the sum outstanding at the rate of 3 per cent per month calculated on a daily basis but without prejudice to the rights of Pyronix to receive payment on the due date.
Time for payment shall be of the essence and in the event of delay or default in any payment of more than 7 days or where genuine doubts arise as to the Buyer’s financial position Pyronix may suspend both work and deliveries both on the same order and on any other order from the Buyer and/or treat a contract as repudiated and/or resell any of the goods in its possession and be indemnified by the Buyer for any loss thereby incurred, without prejudice to any other right Pyronix may have.
Pyronix may at any time appropriate sums received from the Buyer as it thinks fit notwithstanding any purported appropriation of the Buyer.
Risk in and Title to Goods
Unless otherwise agreed in writing by Pyronix, the risk in the goods shall pass to the Buyer on departure of the goods from Pyronix’s facility. Pyronix accepts no responsibility for any damage or loss in transit.
Title to the goods shall not pass to the Buyer until the earlier of:
Pyronix receives payment in full (in cash or cleared funds) for the goods and any other goods that Pyronix has supplied to the Buyer in respect of which payment has become due, in which case title to the goods shall pass at the time of payment of all such sums; and
the Buyer resells the goods, in which case title to the goods shall pass to the Buyer at the time specified in clause 4.4.
Until title to the goods has passed to the Buyer, the Buyer shall:
store the goods separately from all other goods held by the Buyer so that they remain readily identifiable as Pyronix’s property;
not remove, deface or obscure any identifying mark or packaging on or relating to the goods;
maintain the goods in satisfactory condition and keep them insured against all risks for their full price from the date of dispatch from Pyronix’s facility;
notify Pyronix immediately if it becomes subject to any of the events listed in clause 8.2; and
give Pyronix such information relating to the goods as Pyronix may require from time to time.
Subject to clause 4.5, the Buyer may resell or use the goods in the ordinary course of its business (but not otherwise) before Pyronix receives payment for the goods. However, if the Buyer resells the goods before that time:
it does so as principal and not as Pyronix’s agent; and
title to the goods shall pass from Pyronix to the Buyer immediately before the time at which resale by the Buyer occurs.
If before title to the goods passes to the Buyer the Buyer becomes subject to any of the events listed in clause 8.2, then, without limiting any other right or remedy Pyronix may have:
the Buyer’s right to resell the goods or use them in the ordinary course of its business ceases immediately; and
Pyronix may at any time:
require the Buyer to deliver up all goods in its possession which have not been resold, or irrevocably incorporated into another product; and
if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the goods are stored in order to recover them.
Pyronix warrants that on delivery, and for the period specified on the batch label relating to the product supplied (“warranty period”), the goods shall conform in all material respects with their description and shall be free from material defects in design, material and workmanship.
Subject to clause 5.3, if:
the Buyer gives notice in writing to Pyronix during the warranty period within a reasonable time of discovery that some or all of the goods do not comply with the warranty set out in clause 5.1.;
Pyronix is given a reasonable opportunity of examining such goods; and
the Buyer returns such goods to Pyronix’s place of business at the Buyer’s cost, following the guidelines of the latest version of the Pyronix Returns Procedure, available on the Pyronix website.
Pyronix shall, at its option, repair or replace any such goods (other than consumable items) found to be defective as a result of faulty materials or workmanship within the warranty period or refund the price of such goods in full.
A claim under warranty in respect of any delivery or instalment of any order or any part thereof shall not entitle the Buyer to cancel or refuse delivery of or payment for any other order, delivery or instalment or any part of the same order, delivery or instalment.
If Pyronix fails to make goods available at its premises, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the goods. Pyronix shall have no liability for any failure to deliver the goods to the extent that such failure is caused by a Force Majeure Event.
Pyronix shall ensure that each delivery of the goods is accompanied by a delivery note which may include the date of the Order, all relevant Buyer and Supplier reference numbers, the type and quantity of the goods (including the code number of the goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of goods remaining to be delivered. The contents of the delivery note may change from time to time.
Pyronix shall (as the Buyer’s agent) arrange for the shipment of goods (at the Buyer’s risk and expense) to the location set out in the order acknowledgement or order confirmation, or such other location as the parties may agree (“Delivery Location”) at any time after Pyronix notifies the Buyer that the goods are ready.
The Buyer shall be responsible for arranging the testing in accordance with clause 10 and inspection of the goods at the premises of Pyronix before shipment. Pyronix shall have no liability for any claim in respect of any defect in the goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
Unless otherwise agreed in writing between the Buyer and Pyronix, Pyronix shall be under no obligation to give notice under Section 32(3) of the Sale of Goods Act 1979.
The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the goods into any other country and for the payment of any duties thereon.
If the Buyer fails to accept delivery of the goods within a week of Pyronix notifying the Buyer that the goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or any failure by Pyronix to comply with its obligations under a contract:
delivery of the goods shall be deemed to have been completed at 9.00 am local time at the relevant Pyronix facility on the seventh day after the day on which Pyronix notified the Buyer that the goods were ready; and
Pyronix shall store the goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance).
If 14 days after the day on which Pyronix notified the Buyer that the goods were ready for delivery the Buyer has not accepted delivery of them, then notwithstanding clause 6.7.2. above Pyronix may resell or otherwise dispose of part or all of the goods.
The Buyer shall not be entitled to reject the goods if Pyronix delivers up to and including 5% more or less than the quantity of goods ordered.
Similarly, gauges, weights, chemical composition and analysis, quantities and sizes will so far as possible be adhered to but reasonable excesses and deficiencies thereof shall be accepted by the Buyer, who shall only be entitled to reject any goods or to require replacement of any goods if they materially vary from the goods ordered.
Pyronix may deliver the goods 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 Buyer to cancel any other instalment.
LIMITATION OF LIABILITY
Nothing in these terms and conditions shall limit or exclude Pyronix’s liability for:
death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
fraud or fraudulent misrepresentation;
breach of the terms implied by section 12 of the Sale of goods Act 1979;
defective products under the Consumer Protection Act 1987; or
any matter in respect of which it would be unlawful for Pyronix to exclude or restrict liability.
Subject to clause 7.1. above:
Pyronix shall under no circumstances whatever be liable to the Buyer, 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 a contract; and
The total liability of Pyronix to the Buyer in respect of all other losses arising under or in connection with a contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the goods which are the subject of the contract.
TERMINATION AND SUSPENSION
If the Buyer becomes subject to any of the events listed in clause 8.2., Pyronix may terminate a contract with immediate effect by giving written notice to the Buyer.
For the purposes of clause 8.1., the relevant events are:
the Buyer 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;
the Buyer 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 Buyer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
(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 Buyer, other than for the sole purpose of a scheme for a solvent amalgamation of the Buyer with one or more other companies or the solvent reconstruction of the Buyer;
(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 Buyer;
(being a company) the holder of a qualifying floating charge over the Buyer’s assets has become entitled to appoint or has appointed an administrative receiver;
a person becomes entitled to appoint a receiver over the Buyer’s assets or a receiver is appointed over the Buyer’s assets;
(being an individual) the Buyer is the subject of a bankruptcy petition or order;
a creditor or encumbrancer of the Buyer 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;
any event occurs, or proceeding is taken, with respect to the Buyer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2.1. to clause 8.2.6. (inclusive);
the Buyer suspends, threatens to suspends, ceases or threatens to cease to carry on all or a substantial part of its business;
the Buyer’s financial position deteriorates to such an extent that in the opinion of Pyronix the Buyer’s capability to adequately fulfil its obligations under these terms and conditions or any other contract between Pyronix and the Buyer has been placed in jeopardy; and
(being an individual) the Buyer 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.
Without limiting its other rights or remedies, Pyronix may suspend provision of the goods under a contract or any other contract between the Buyer and Pyronix if the Buyer becomes subject to any of the events listed in clause 8.2.1. to clause 8.2.12., or Pyronix reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under these terms and conditions on the due date for payment.
On termination of a contract for any reason the Buyer shall immediately pay to Pyronix all of its outstanding unpaid invoices and interest.
Termination of a contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
Clauses which expressly or by implication survive termination of a contract shall continue in full force and effect.
Neither party shall be liable for any failure or delay in performing its obligations under a 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.
Unless otherwise specifically agreed by Pyronix in writing, all tests:
and any test pieces and inspections whatsoever required by the Buyer will be charged extra;
and any inspections (whether or not being tests of chemical composition) shall take place under any then-standard testing arrangements of Pyronix,
shall be final;
are subject to analytical tolerances.
Where the Buyer supplies materials (such as materials and products for incorporation into goods, specifications, patterns, dies, tools, drawings or equipment) to Pyronix:
Pyronix shall be entitled to assume that they:
are in good condition,
accurate and true to drawing
entirely suitable to the methods of production used by or on behalf of Pyronix
entirely suitable for the production of the goods ordered in the quantities required.
while Pyronix may use reasonable endeavours to verify patterns, dies, tools, drawings and equipment supplied by the Buyer no responsibility is accepted by Pyronix for their accuracy.
the Buyer shall indemnify Pyronix 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 professional costs and expenses) suffered or incurred by Pyronix in connection with any claim made against Pyronix in respect of:
actual or alleged infringement of a third party’s intellectual or industrial property rights arising out of or in connection with Pyronix’s use of them;
the improper incorporation assembly, use, processing, storage or handling of goods by the Buyer; and
defective materials or products supplied by the Buyer.
all replacements, alterations and repairs to the Buyer’s patterns, dies, tools, drawing and equipment shall be paid for by the Buyer.
Pyronix will take all reasonable care of the Buyer’s materials while in its possession but subject to clause 7., Pyronix does not accept liability for loss or damage to it, howsoever arising.
Where the Buyer orders goods or materials of a type, size or quality not normally produced by Pyronix or services not normally performed by Pyronix, if the order is accepted Pyronix will use all reasonable endeavours to execute the order, but if it proves impossible, impracticable or uneconomical to carry out or complete the order, it reserves the right to cancel the order or the uncompleted balance thereof, in which event the Buyer will only be liable to pay for the part of the order actually delivered or performed.
ASSIGNMENT AND OTHER DEALINGS
Pyronix 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 a contract.
The Buyer 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 a contract without the prior written consent of Pyronix.
Any notice or other communication given to a party under or in connection with a 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 either personally or by commercial courier using a service which requires a signature on delivery.
A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 14.1.; 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 e-mail, one business day after transmission.
The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
Each paragraph and sub-paragraph of these terms and conditions is separate, severable and distinct.
If any provision or part-provision of these terms and conditions 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 terms and conditions
A waiver of any right or remedy under a 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 a 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.
THIRD PARTY RIGHTS
A person who is not a party to a contract incorporating these terms and conditions shall not have any rights to enforce its terms.
No variation of a contract incorporating these terms and conditions, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by Pyronix.
GOVERNING LAW AND JURISDICTION
Any contract incorporating these terms and conditions, 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.
Each party irrevocably agrees that the courts of England 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).
HEALTH AND SAFETY AT WORK ETC
The Buyer agrees to pay due regard to any information supplied by Pyronix relating to the goods and the use for which the goods are designed or have been tested or concerning the conditions necessary to ensure that they will be safe and without risk to health at all times when they are being set, used, cleared or maintained by any person at work, and the Buyer undertakes to take such steps as may be specified by the above information to ensure that as far as reasonably practicable the goods will be safe and without risk to health at all times as mentioned above.
USE OF THE PYRONIX LOGO, BRAND AND COPYRIGHT IMAGES
As a Pyronix customer you may use the appropriate Pyronix logo and copyright images, free of charge, solely for the authorised re-sale and marketing of our products and in accordance with the Pyronix Branding Guide, available from our Marketing Manager (email@example.com).
However, before the publication of any relevant material, you must request permission of use from our Marketing Manager (firstname.lastname@example.org) and receive authorisation in writing. Since the integrity of the “Pyronix” Brand is very important to us, the context and professionalism of any published marketing material must be seen to support our brand image in the marketplace
Save as set out in this clause the Buyer is granted no other right to use any of trademarks or other industrial or intellectual property rights of Pyronix which shall at all times remain its property.