GPTE INTERNATIONAL LIMITED
TERMS AND CONDITIONS OF SALE
1.1 In these Terms and Conditions of Sale ("the Conditions"):
means written or e-mail acceptance of an Order by GPTE;
means any day other than (i) a Saturday, (ii) a Sunday or (iii) a day when the clearing banks are not open for business in the City of London;
means the person who places an order to purchase Goods from GPTE;
means a binding legal contract under which GPTE agrees to supply Goods ordered by the Buyer and which is formed in accordance with Condition 3
means the point at which GPTE will have fulfilled its obligation to supply the Goods to the Buyer under the Contract and "Deliver" shall be interpreted accordingly;
means the goods sold or to be sold by GPTE;
means GPTE International office at Haddon House, 29 New House Park, St Albans, Hertfordshire, AL1 1UQ).
means the person, partnership, company or business who manufactured the Goods;
means an order submitted by the Buyer to GPTE for the purchase of Goods at the price set out in the Quotation;
means a quotation from GPTE to the Buyer, offering to sell a particular quantity and type of Goods to the Buyer at a particular price;
the period stated as such in the Quotation starting with the date of the relevant invoice during which the warranty in Condition 9.2 applies.
1.2 In the Conditions:
1.2.1 headings are for ease of reference only and shall not affect the interpretation or construction of the Conditions;
1.2.2 words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include every gender and references to persons shall include an individual, company, corporation, firm or partnership; and
1.2.3 references to any statute or statutory provision shall include any subordinate legislation made under it, any provision which it has modified or re-enacted (whether with or without modification) and any provision which subsequently supersedes it or re-enacts it (whether with or without modification).
2.1 The Conditions shall apply to all Quotations, Orders and Contracts made or to be made by GPTE for the sale of Goods. The giving by the Buyer of any Order or any delivery instruction or the acceptance by the Buyer of Delivery of the Goods shall constitute unqualified acceptance by the Buyer of these Conditions.
2.2 The Conditions shall prevail over any terms put forward by the Buyer. Any conditions submitted, proposed or stipulated by the Buyer in whatever form and at whatever time, whether in writing, by e-mail or orally, are expressly waived and excluded.
2.3 No statements made by the employees, contractors or agents of GPTE or contained in any website, brochures, catalogues, sales literature or correspondence are intended to have any legal effect unless expressly agreed in writing or by e-mail by a duly authorised representative of GPTE or are stated by GPTE that the same shall form part of the Contract.
2.4 The Conditions, together with the Quotation, Order and Acceptance, contains the entire agreement between GPTE and the Buyer in relation to the Contract. They supersede and replace any prior written, e-mail or oral agreements, representations or understandings between GPTE and the Buyer relating to the Contract. The Buyer acknowledges that it has not entered into the Contract based on any representation that is not expressly incorporated into the Contract. Nothing in the Contract shall exclude or limit liability for fraud.
2.5 To the extent there is any conflict between the Conditions and the Quotation, Order or Acceptance, the Quotation, Order or Acceptance shall prevail.
2.6 No other terms or changes to the Contract shall be binding unless agreed in writing or by e-mail by a duly authorised representative of GPTE.
2.7 No Contract shall be a sale by sample.
3. BINDING CONTRACT
3.1 If the Buyer would like to purchase any Goods, it shall first ask GPTE for a Quotation.
3.2 Within 30 days of the date of a Quotation which GPTE has not revoked (orally, by e-mail or in writing), the Buyer shall submit its Order in writing or by e-mail to GPTE. The Order shall be on the same terms as the Quotation and shall refer expressly to the relevant Quotation.
3.3 GPTE may acknowledge receipt of the Order. Unless the acknowledgement of receipt expressly states that GPTE is accepting the Order, this shall not constitute Acceptance.
3.4 The Contract is formed when GPTE delivers its Acceptance to the Buyer in respect of an Order placed by the Buyer which the Buyer has not previously revoked. Acceptance shall be deemed to have been delivered when it has been posted (if sent by post), received by the Buyer (in the case of personal delivery), or upon receipt by GPTE of confirmation of the Buyer's receipt (in the case of sending by e-mail).
3.5 GPTE may in its absolute discretion decide whether to agree to the Buyer's written or e-mail request to cancel or reschedule any Order prior to Delivery.
4.1 Subject to informing the Buyer, GPTE may supply Goods with modifications or improvements incorporated into them.
4.2 The Buyer acknowledges that the Goods are second-hand. Where:4.2.1 the Goods are not sold "as is"; and
4.2.2 there is no applicable certificate of calibration provided through GPTE in accordance with Condition 4.3; and
4.2.3 it is possible depending on the particular Goods,
Unless otherwise stated in its Quotation, GPTE shall prior to Delivery to an end-user, as part of the price for the Goods have the Goods cleaned and issued with a certificate of conformance traceable to UK National Standards and tested against the Manufacturer's specification. A certificate of conformance is not as accurate as a certificate of calibration.
4.3 It is the Buyer's decision whether it seeks to obtain a certificate of calibration. If the Buyer chooses to do so and GPTE agrees to provide assistance, GPTE shall act as the Buyer's agent in finding a relevant service provider to conduct the testing. In that case, unless otherwise provided in the Quotation, the Buyer shall be required to pay to GPTE the service provider's fees in full before the testing may commence and GPTE shall pay the fees of the service provider on the Buyer's behalf in accordance with the service provider's payment terms. The Buyer acknowledges that GPTE is merely acting as its agent and shall not be liable for the acts or omissions of the service provider or the results provided. If the Buyer does obtain a certificate of calibration with GPTE’s assistance, GPTE will not provide a certificate of conformance.
5.1 The packaging of the Goods shall be in accordance with GPTE's customary packaging practices. If the Buyer would like extra packaging, this is available at a cost.
6. DELIVERY AND RISK
6.1 Where destination of the Goods is in the UK, Delivery shall be CPT as per Incoterms 2010 and shall be deemed to have occurred when the Goods are collected by the carrier from GPTE's premises for transit to the destination agreed between GPTE and the Buyer. Sub-sections (1) and (2) of Section 32 of the Sale of Goods Act 1979 shall not apply to the Contract.
6.2 Where the destination of the Goods for receipt by the Buyer is outside of the UK, Delivery shall be Ex-Works as per Incoterms 2010. For Deliveries made Ex-Works, GPTE shall be deemed to have Delivered the Goods when the Goods are ready for collection at their collection point and GPTE has notified the Buyer of this.
6.3 The Buyer shall ensure that it is ready for safe receipt of the Goods without undue delay.
6.4 Any dates for Delivery stated in the Quotation, the Order, acknowledgement of Order or Acceptance or otherwise provided by GPTE shall not be of the essence and are estimates only. GPTE shall not be liable for any loss or damage whether arising directly or indirectly from delay in Delivery.
6.5 Partial Delivery shall be permitted. Although GPTE will endeavour to Deliver the Goods under the Contract together, GPTE may Deliver the Goods by instalments and may invoice the Buyer for each Delivery. Delay, default or non-Delivery of any instalment shall not entitle the Buyer to cancel the remainder of the Contract.
6.6 Each agreement between GPTE and the Buyer shall constitute a separate contract and delay, default or non-delivery in respect of any one contract shall not entitle the Buyer to cancel the Contract or delay in paying for the Goods under the Contract.
6.7 Where a sale is on an Ex-Works Incoterms 2010 or CPT Incoterms 2010 basis signature of receipt from the carriers’ representative and/or proof that the consignment has been entered in their tracking system shall be evidence that the ordered Goods have been Delivered. In addition, the Buyer may be required to sign a delivery note upon the Goods arriving at the place of destination as further evidence that the ordered Goods have been Delivered. Buyer to ensure that all Goods are signed for as “unchecked” in case it is subsequently found that damage has occurred in transit.
6.8 All risk in the Goods shall pass to the Buyer upon:6.8.1 collection of the Goods by the carrier in the case of CPT Incoterms 2010 sales; or
6.8.2 notification to the Buyer that the Goods are ready for despatch in the case of Ex-Works Incoterms 2010 sales.
6.9 Notwithstanding any provision in Incoterms 2010 to the contrary, the Buyer shall keep the Goods fully insured with a reputable insurance company against all risks of loss or damage from the time when the risk passes to it until property passes in accordance with Condition 7. If the Goods are lost, damaged or destroyed, the Buyer shall hold the proceeds of insurance for and to the order of GPTE pending Payment (as defined in Condition 7.1).
6.10 If Delivery is delayed through the Buyer's default or if the Buyer declines or delays in accepting Delivery, then GPTE may (without prejudice to any other right or remedy available to it) do all or any of the following:
6.10.1 sell the Goods for GPTE's account;
6.10.2 cancel the Contract as regards any Goods that remain to be Delivered; and
6.10.3 charge a reasonable storage fee and other costs and losses incurred by GPTE (including without limitation the difference between the price received by GPTE from another purchaser for the Goods and the price for the Goods in the Quotation.
6.11 If the Goods are being exported from the UK, the Buyer shall be responsible for complying with all applicable legislation and regulations governing the exportation of the Goods out of the UK and the importation of the Goods into the country of destination and for payment of any duties or levies thereon.
7.1 Notwithstanding Delivery, property in the Goods shall remain with GPTE and subject to the following provisions of this Condition the Buyer shall hold the Goods as bailee for GPTE until payment in full of all sums owing from the Buyer to GPTE on any account whatsoever whether under the Contract or any other contract between GPTE and the Buyer ("Payment")
7.2 Until Payment, the Buyer shall keep the Goods in good condition and separate and clearly identified as the property of GPTE.
7.3 The Buyer shall not pledge or allow any lien or charge to arise over Goods until Payment. The Buyer shall not deal with the Goods other than in the ordinary course of business.
7.4 In the event of sale or any disposition of the Goods by the Buyer, the Buyer shall hold on trust for GPTE to the GPTE's order in a separate bank account any proceeds received up to the full value of the Payment. The Buyer shall not mix the proceeds of sale with any other monies. If the monies are mixed, GPTE may trace the proceeds into any other monies and the Buyer shall indemnify GPTE against any losses, damages, costs and expenses for doing so. If GPTE requires, the Buyer shall authorise and direct such third party buyer to pay to GPTE a like part of the sum due to the Buyer in respect of the Goods sold and assign to GPTE such part of the debt owed to the Buyer by the third party.
7.5 GPTE may at any time until Payment without notice recover possession of the Goods which are the property of GPTE. The Buyer hereby grants to GPTE an irrevocable licence to enter for that purpose any premises then occupied by or in the ownership or possession of the Buyer. The Buyer shall indemnify GPTE against all claims, losses, damages, liabilities, costs and expenses so arising.
7.6 GPTE shall be entitled to maintain an action for the price of the Goods, notwithstanding that the property in them has not passed to the Buyer.
8. PRICE AND PAYMENT
8.1 The price and currency for payment shall be as stipulated in the Quotation.
8.2 GPTE reserves the right before Delivery to vary the price of the Goods by notifying the Buyer due to a change in its costs arising outside of its reasonable control. If the price is increased, the Buyer may cancel the undelivered balance of the Contract by notifying the Company within seven days of the Company's notice of price change and before the Goods are despatched in the case of sales on a CPT Incoterms 2010 basis.
8.3 Unless otherwise agreed by GPTE in writing or by e-mail, the price of the Goods:
8.3.1 is without discount; and
8.3.2 is exclusive of costs of any applicable sales, export and import taxes incurred by GPTE, which must all be paid in full at the same time as payment for the Goods; and
8.3.3 (in respect of a Delivery outside of the UK for which GPTE has agreed to organise carriage) is exclusive of the cost of carriage, which must be paid for in full at the same time as payment for the Goods.
8.4 Unless stated in the Quotation or otherwise agreed by GPTE in writing or by e-mail, the Buyer shall pay in full upon submission of the Order. Time for payment is of the essence.
8.5 The Buyer shall pay all sums due to GPTE in full without any set-off, deduction or withholding whatsoever.
8.6 If the Buyer is late in paying any sum to GPTE, GPTE may (without prejudice to any other right or remedy available to it whether under the Contract or by any statute, regulation or bye-law) do any or all of the following:
8.6.1 charge interest at the annual rate of 8% above the official dealing rate of the Bank of England from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly;
8.6.2 sell or otherwise dispose of any Goods which are the subject of any Order by the Buyer, whether or not appropriated thereto, and apply the proceeds of sale to the overdue payment; and
8.6.3 suspend the performance of the Contract and any other contract between GPTE and the Buyer until payment in full has been made.
9.1 This condition 9 sets out the entire liability of GPTE to the Buyer in respect of damaged or defective goods and shall apply in lieu of all conditions, warranties or obligations which would otherwise be implied by Statute, Common Law or otherwise, all of which are excluded to the fullest extent permitted by law.
9.2 GPTE warrants that:
9.2.1 the Goods will be delivered to the Buyer in the quantities ordered;
9.2.2 except for sales in an “as is” condition, the goods on delivery will be of a similar appearance to the original manufactured condition; and
9.2.3 the Goods, other than those specifically offered for sale in an "as is" condition, will during the warranty period remain free from material defects caused solely by faulty materials or poor workmanship and will perform substantially in accordance with their technical and functional specifications in the manufacturer’s product catalogue in force at the time of the manufacturer’s original sale of the goods.
9.3 Subject to Condition 9.4, GPTE shall at its option:
9.3.1 repair or replace; or
9.3.2 repay an appropriate portion of the purchase price of; or
9.3.3 provide a credit note in respect of,delivered Goods which are not in conformance with the Warranty set out in Conditions 9.2.2 or 9.2.3.
9.4 GPTE's liability for defective or damaged goods under Conditions 9.2.2 and 9.2.3 is subject to:
9.4.1 the Buyer notifying GPTE of any claim promptly and in any event within two business days from discovery, specifying with reasonable detail the way in which it is alleged that the goods are defective or damaged;
9.4.2 at the same time as the Notice, the Buyer providing GPTE with GPTE's Sales Order Number, Invoice Number, Invoice date, Goods Serial Number and confirmation whether the packaging around the goods was received intact by the Buyer;
9.4.3 the Buyer showing to GPTE's reasonable satisfaction that the defect or damage is solely attributable to defective materials or workmanship in the Goods or pre-delivery care and not the combination or incompatibility of the Goods with any other materials or products or post-delivery installation or moving or transit of the Goods;
9.4.4 following Delivery, the Goods having not been misused or subjected to neglect, improper or inadequate care, carelessness, abnormal working or usage conditions or improper maintenance, or involved in any accident, repair, replacement, servicing or modification or dealt with contrary to any instructions of GPTE or the Manufacturer;
9.4.5 the Goods not having had the "Warranty Void" seals that were affixed by GPTE disturbed or broken without prior written or e-mail authorisation from an authorised representative of GPTE;
9.4.6 the Buyer allowing GPTE the opportunity to inspect the Goods;
9.4.7 the Buyer obtaining a quote to repair locally if requested by GPTE;
9.4.8 the Buyer returning to GPTE's premises or such other location stipulated by GPTE anywhere in the world the defective or damaged Goods carriage and insurance paid at the Buyer's risk with GPTE's Goods Return Number clearly displayed on the label and carefully packed to avoid damage in transit (and Section 36 of the Sale of Goods Act 1979 shall not apply); and
9.4.9 the Buyer having paid for the Goods in full no later than 30 days after the due date of the payment.
9.5 Although GPTE may have conducted tests on the Goods or obtained a Certificate of Conformance, it makes no Warranty under Conditions 9.2.2 or 9.2.3 on Goods sold "as is". This is due to the age of the Goods, their obsolence or lack of support, the low sale price, anything beyond the reasonable control of GPTE or anything else that makes it fair in the circumstances to offer no Warranty. In cases of Goods sold "as is", in accordance with the Buyer's reasonable request, GPTE shall allow the Buyer or its agent a reasonable opportunity to inspect and test the goods before they are despatched by GPTE. If, following the Buyer’s test, the Buyer does not want to proceed with the purchase of the inspected goods because they do not work satisfactorily, the Buyer may reject those Goods (but not any other Goods forming part of the Contract). In the event:
9.5.1 GPTE shall refund to the buyer any of the sales price for those Goods already paid by the Buyer less GPTE's reasonable expenses; and
9.5.2 the Buyer shall not be liable to pay GPTE the sale price for those Goods, provided that it shall promptly reimburse GPTE for GPTE's reasonable expenses.
9.6 GPTE shall not offer any Warranty under Condition 9.2.3 in respect of parts which would not have been subject to the original Warranty of the Manufacturer. Without Prejudice to the generality of the previous sentence, the Warranty under Condition 9.2.3 shall exclude the following items: displays, attenuators, thermionic values, TWT’s, backward wave & YIG oscillators, RF power elements, transport mechanisms, cesium & rubidium tubes, software, cathode ray tubes, cases, microphones, light wave sources, transmission & receiving components, photo multipliers, tubes, probes, transducers and tape heads.
9.7 The Warranty contained in this Condition is specifically limited to the Buyer. No Warranty is made to any other person, whether subsequent Buyer or user, or to any bailee, licensee, assignee, employee, agent or otherwise.
9.8 If the Buyer makes an invalid claim under the Warranty in the Condition or if the Buyer returns the Goods other than in accordance with this Condition 9 or GPTE's instructions, GPTE may charge the Buyer for its charges and reasonable costs in examining the Goods and dealing with the claim plus its costs of storage and returning the Goods to the Buyer.
9.9 If the Buyer makes a valid claim under the Warranty under Conditions 9.2.2 or 9.2.3, GPTE will pay for the cost of return (but not insurance) of the repaired or replaced Goods to the Buyer’s original destination. Delivery of the return shall be at the Buyer’s risk.
9.10 The Buyer acknowledges that it should regularly maintain and service the goods after any warranty period. To the extent permitted by law, GPTE shall not have any responsibility for the Buyer’s or any third party’s continued use of the Goods after the end of any applicable Warranty period.
10. LIMITATIONS OF LIABILITY AND INDEMNITY
10.1 All descriptions, representations, specifications, samples, colours, illustrations and other particulars furnished or made orally by GPTE or in websites, catalogues, trade literature, price lists or other documents issued by GPTE are given for general information purposes only and the Buyer acknowledges that it is not entering into the Contract in reliance upon any such description, representation, specification, sample, colour, illustration or other particular.
10.3 Subject to Condition 10.2, GPTE shall not be liable to the Buyer (whether in Contract, tort or otherwise) under the Contract in respect of any:10.3.1 Indirect or consequential losses, damages, costs or expenses;
10.3.2 loss of data;
10.3.3 loss of profit;
10.3.4 loss of revenue; or
10.3.5 loss of goodwill,
10.4 Subject to the rest of this Condition 10, the total liability of GPTE arising out of or in connection with a claim made by the Buyer in respect of loss or damage suffered by the Buyer flowing from any one event or series of connected events pursuant to the Contract shall be limited to:
10.4.1 the total sums paid by the Buyer to GPTE for the specific item of test equipment in question under the Contract where the Goods are sold "as is";
10.4.2 the higher of £250,000 and the total sums paid by the Buyer to GPTE for the specific item of test equipment in question under the Contract where the Goods are sold other than "as is".
11. TECHNICAL INFORMATION
11.1 All confidential information of any kind including but not limited to technical information, materials, specifications and drawings ("Technical Information") coming to the attention of the Buyer (whether before or after the date of an Order) in connection with the Goods shall remain the property of GPTE. The Buyer shall at all times (whether before or after the date of an Order) keep and procure to be kept secret and confidential the Technical Information and shall not use nor disclose the same save:11.1.1 for the proper performance of the Contract or any other contract between GPTE and the Buyer; or
11.1.2 as otherwise permitted by the Contract; or
11.1.3 with the prior written consent of GPTE.
11.2 The Buyer shall at GPTE's option return or destroy all documents containing Technical Information to GPTE on request.
11.3 The Buyer shall indemnify GPTE against all claims, losses, damages, liabilities, costs and expenses incurred by GPTE arising whether directly or indirectly from any breach by the Buyer of this Condition 11.
12. FORCE MAJEURE
12.1 GPTE shall not be liable for any breach or delay in the performance of the Contract attributable to any cause beyond its reasonable control ("Event of Force Majeure"), regardless of whether the circumstances in question could have been foreseen.
12.2 The performance of each party's obligations shall be suspended during the period that the circumstances persist and such party shall be granted an extension of time for performance equal to the period of the delay.
12.3 Each party shall bear its own costs incurred by the Event of Force Majeure.
12.4 Should any performance of obligations be delayed under this Condition 12, the Buyer shall nevertheless accept performance as and when GPTE shall be able to perform.
12.5 If the Event of Force Majeure continues without a break for more than three months, either party may terminate the Contract forthwith by written notice to the other, in which event neither party shall be liable to the other party by reason of such termination.
12.6 If GPTE has contracted to provide identical or similar Goods to more than one buyer and is prevented from fully meeting its obligations to the Buyer by reason of an Event of Force Majeure, GPTE may decide in its absolute discretion which contracts it will honour and to what extent.
13. DEFAULT, WINDING UP
13.1 In the event that the Buyer:
13.1.1 is in breach of any or its obligations under the Contract; or
13.1.2 is unable to pay its debts or, being a company, has a petition for administration or winding up presented against it or commences winding up proceedings or has a receiver or manager appointed over any of its property or assets or, being an individual or partnership, is the subject of a bankruptcy petition or in either case enters into any composition with creditors generally or takes or suffers any steps preparatory thereto or if any distress or execution is levied or threatened to be levied on any of the property or assets of the Buyer,
GPTE may terminate the Contract immediately on giving notice in writing and retain any deposit or advance payment and the Buyer shall indemnify GPTE against all claims, losses, damages, liabilities, costs and expenses of whatsoever nature resulting from any such termination and all sums due to GPTE from the Buyer shall become immediately payable.
13.2 On the happening of any of the events in Condition 13.1, then if the Buyer has not paid GPTE in full for the Goods, the Buyer shall:
13.2.1 not sell or use the Goods in any way and shall immediately inform GPTE of the occurrence of the event in Condition 13.1; and
13.2.2 immediately deliver the Goods in which GPTE has reserved property to such address as GPTE shall specify.
13.3 Termination of the Contract shall be without prejudice to any accrued rights or remedies of GPTE. Termination of the Contract will not affect the coming into force or continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
14.1 Any notice or other communication required or authorised to be given under the Contract shall be in writing or by e-mail and may be served by personal delivery or by first-class pre-paid post or recorded delivery letter or by facsimile or e-mail addressed to such address or facsimile number or e-mail address of the other for last known to the sender.
14.2 Unless otherwise stated, any notice given by post shall be deemed to have been served two Business Days after the same is posted and any notice so given by facsimile or e-mail shall be deemed to have been served upon receipt of an answerback signal and upon the sender's receipt of information to the effect that e-mail has been opened by the recipient. In proving service it shall be sufficient to prove that the letter or facsimile was properly addressed or numbered and, as the case may be, handed in at the Post Office as a first-class pre-paid post or recorded delivery letter or despatched or an or information that the correctly addressed e-mail was opened.
15.1 No failure or delay by either party in exercising any right under the Contract shall operate as a waiver of such right or extend to or affect any other or subsequent event or impair any rights or remedies in respect of it or in any way modify or diminish that party's rights under the Contract.
15.2 If any Condition or part of any Condition shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect any other Condition or provision or part of any Condition or provision, all of which shall remain in full force and effect.
15.3 The Buyer shall not assign or transfer or purport to transfer or assign the Contract to any other person.
15.4 Nothing in the Contract shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between the parties.
15.5 A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
15.6 The Contract shall be governed by and construed in accordance with English law and the parties hereby submit to the non-exclusive jurisdiction of the English courts. All dealings, correspondence and contacts between the parties shall be made or conducted in the English language.