SBO Terms & Conditions - UK
Anritsu UK Terms and Conditions - 1st April 2006
The T&C mentioned below for Anritsu EMEA Ltd are also applicable to Anritsu Nordic (Sweden, Finland, Denmark) as part of Anritsu EMEA
1.1. In these conditions the following expressions shall have the following meanings:
1.1.1 "Additional items" means packaging costs under condition 10.1, any taxes (including VAT), duties or any other charges but excluding taxes assessed on profits or gains, and any works and services provided by AEL in conjunction with the sale of Products;
1.1.2 "Contract" means the quotation, these conditions, and any other document incorporated in a contract between AEL and the customer;
1.1.3 "the Customer" means any person firm or company receiving a quotation from and/or placing an Order with AEL;
1.1.4 "Delivery Period" means 3 months after the estimated delivery date;
1.1.5 "Products" means all and every item of goods or part thereof supplied by AEL and where relevant includes any work carried out by AEL on items supplied by the Customer and/or AEL;
1.1.6 "Service" means repairs to the Products or calibration of the Products;
1.1.7 "Transgression" means any breach of contract or tort or other act, default, omission or statement of AEL, its employees, agents or subcontractors in respect of which AEL is liable to the Customer;
1.1.8 "Warranty Period" for new equipment sales means 12 months from the date of delivery, unless otherwise stated.
2.1 These conditions apply to all contracts for the sale and service of Products by AEL and supersede any previous Conditions of Sale and/or Service published by AEL and may not be altered or amended unless done in writing and signed by a director of AEL.
2.2. The Customer who exports Products shall assume responsibility for complying with any legislation or regulations (of the United Kingdom or any other country) governing the export and import of the Products into the country of destination (and any other country through which the Products pass in transit) and for the payment of any duties thereon. AEL's products fall into categories of items controlled for export by the Wassenaar Agreement, therefore the Customer will not export or re-export Products or any technical data in violation of applicable export regulations.
3. QUOTATION AND ORDERS
3.1 No contract for the supply or Service of Products will be created by the acceptance of a quotation or an order until AEL acknowledges the order or commences work on the order.
3.2 Product prices remain valid for 90 days from the order date unless the delivery date is extended to beyond 90 days from date of order in which case the Product prices will be those in effect when the delivery date is extended provided delivery is to take place within a further 90 days.
3.3 Prices quoted are fixed, notwithstanding exchange rate fluctuations, unless the relevant exchange rate is specified on the quotation.
3.4 AEL reserves the right to increase the price quoted per unit for Products if the Customer orders less than the number of units upon which the quotation was based.
3.5 This condition 3.5 shall apply where AEL is supplying Service:
3.5.1 AEL reserves the right to amend any quotation subsequent to acceptance by the Customer should further investigation indicate that additional repair work is required. The Customer may accept any revised quotation issued by AEL or withdraw acceptance, and in the event of an acceptance being withdrawn the Customer will be liable to pay an inspection charge only;
3.5.2 All quotes for Service will be deemed to be declined unless accepted within 15 days from the date of quotation. Products sent to AEL for Service may be returned unserviced if the Customer has not accepted the quotation within the above period.
3.6 AEL may, without additional charge or notification, modify Products or Products specification to improve operability or reliability or to meet legal requirements.
4. PRICE AND PAYMENT TERMS
4.1 Unless otherwise stated any Additional Items shall be added to the price.
4.2 Payment in full (without any deduction by way of set off or counter claim) for the Products (and Additional Items if any) and/or for Service shall be due and payable:
4.2.1 for Customers not holding a credit account with AEL prior to despatch of the Products;
4.2.2 for Customers holding a credit account with AEL within 30 days of AEL's invoice.
4.3 for Customers holding a credit account AEL reserves the right to charge interest at 3% above the Barclays Bank PLC base lending rate for the time being on any overdue payments until repaid in full and to recover from the Customer all expenses reasonably incurred by AEL in the collection of any overdue sums.
4.4. Without prejudice to any other rights of AEL, if there is reason to doubt that the amounts due from the Customer under the terms of the Contract will be paid in full according to the terms thereof, then AEL reserves the right to require payment in full before delivering or performing any other work or services whatsoever for the Customer. AEL reserves the right to sell or dispose of any Products where payment in accordance with this condition is not received within 30 days of demand and to recover any additional loss .
This condition 5 applies to the sales of Products to the Customer:
5.1 Legal ownership of the Products is to remain vested in AEL until both the Products and any Additional Items have been paid for in full and until full payment has been received by AEL under any other contract with the Customer for which payment is outstanding;
5.2 If the Customer obtains possession of the Products prior to such payment, the Customer shall hold the Products in a separate and identifiable form as bailee and fiduciary agent for AEL;
5.3 Failure to pay the full amount when due shall give AEL or its employees or agents the right to repossess the Products (and enter the Customer's premises for that purpose if necessary) with or without notice and without liability and, at its option, to avail itself of any other legal remedy;
5.4 AEL shall have the right to sell the Products once they have been re-possessed under this condition.
5.5 Despite this condition 5, AEL shall be entitled to claim the price of the Products and Additional Items at any time after the date when payment is due.
5.6 Until an event specified in condition 12.1 occurs to it the Customer may sell Products to a third party for valuable consideration provided always that the Customer shall account in a fiduciary capacity to AEL for the proceeds of sale (to the extent of the Customer's indebtedness to AEL) keeping the same separate and identifiable from its other monies.
5.7 The Customer shall hold AEL's proportion of any commingled Products or their proceeds of sale on trust for AEL. AEL shall be treated as a tenant-in-common of the commingled products. The Customer agrees that Products shall remain chattels and be severable even if attached to building, plant or machinery.
6. PERFORMANCE AND FORCE MAJEURE
6.1 AEL shall take all reasonable steps to perform its obligations within the time specified, but shall not be liable for expenses losses or damages caused by late performance or delay in delivery (for whatever reason and howsoever caused) and delays (including delays in instalments of deliveries) shall not entitle the Customer to rescind the Contract. If the Products are not delivered within the Delivery Period either party may cancel the order on giving written notice to the other at least 28 days before AEL may reasonably expect to complete the order without liability to compensate the other party for any loss or damage sustained by reason of the non delivery or non acceptance of those Products.
6.2 AEL reserves the right to make part deliveries and to submit invoices for Products supplied as part of an order.
7. SERVICE AVAILABILITY
7.1 Where AEL accepts an order for Service, AEL will endeavour to complete repairs within 7-10 days of receipt of a signed estimate/quotation, subject to condition 6.1.
7.2 AEL reserves the right not to carry out Service on Products which cannot properly or economically be maintained due to excessive wear or deterioration. In such a case AEL will provide an estimate of reconditioning charges. If the Customer declines to have the Products reconditioned, the Customer shall be liable to pay an inspection charge only.
8. SERVICE STANDARDS
8.1 AEL will provide Service so that the Products are returned to normal operating order (subject to condition 7.2). Any replaced parts will become the property of AEL.
8.2 Instrument calibration will be carried out in accordance with the specified national and international commercial standards set out in AEL’s Test and Measurement Support Guide, a copy of which is available upon request. All calibrations will be carried out in accordance with the manufacturer's relevant procedures, and in the absence of these, to metrologically sound calibration procedures developed by AEL to enable the product to meet its published specifications.
9. CUSTOMERS' SERVICE OBLIGATIONS
9.1 Where Service is required, the Customer shall:
9.1.1 prepare a written summary of the Products' failure symptoms and history and delivery this to AEL when accepting a quotation or placing an order;
9.1.2 be responsible for the security of its proprietary and confidential information; and remove products which are not to be serviced by AEL prior to Service being provided;
9.1.3 be responsible for transportation to AEL (including costs and insurance) and ensuring that appropriate electrostatic discharge precautions are taken;
9.1.4 be responsible for the costs of returning Products from AEL to the Customers' desired location.
9.2 Where Service is provided at the Customer's premises, the Customer shall in addition ensure sufficient access and working space are made available to AEL's engineer and notify AEL if the products are situated in an environment which poses a potential health or safety hazard to AEL's employees or subcontractors, in which case AEL may require the Customer to repair the Products under AEL's supervision.
10. RISK CARRIAGE AND PACKAGING
10.1 The price for the Products includes standard packaging and AEL transportation to the customer's specified address with the United Kingdom. Customer requested special packing or transportation must be agreed and shall be chargeable as Additional Items.
10.2 Risk of any loss, damage to or deterioration of the Products shall pass to the Customer on delivery.
10.3 In the case of sales where AEL delivers directly or contracts directly with the Carrier then AEL will repair or replace or issue a credit note (at its option) in respect of Products lost or damaged in transit (other than by default of the Customer), provided that:
10.3.1 in respect of non arrival of the Products notification is made to AEL within 14 days of AEL's invoice for the relevant Products; and
10.3.2 in respect of damage to all or part of the Products or loss of part of the Products notification is made to AEL within 3 days of delivery of the Products and separately to the Carrier within the period stipulated by the Carrier's terms of carriage for claims against the Carrier.
10.4 Once the Products are ready for delivery AEL shall be entitled to invoice and be paid as if they had been delivered if for any reason the Customer does not arrange for or accept delivery.
11. TERM AND REPRESENTATIONS
11.1 These conditions limit/restrict the Customers rights. Customers are advised to read these conditions carefully.
11.2 AEL agrees to repair, replace or issue a credit note (at its option) in respect of Products which are found to be defective (fair wear and tear excepted) and which are returned to AEL within the Warranty Period provided that each of the following are satisfied:
11.2.1 notification of any defect is given to AEL immediately upon it becoming apparent and at AEL's request returned to AEL premises for diagnosis.
11.2.2 the Products have not been subjected to undue wear and tear and/or abnormal use and no work unapproved by AEL in advance (excluding proper maintenance) has been carried out on the Products;
11.2.3 any Products or parts of products replaced shall become the property of AEL;
11.2.4 Product assembly or incorporation into other goods has been done only in accordance with any instructions issued by AEL;
11.2.5 the defect has not arisen from an item manufactured by a person other than AEL;
11.2.6 final determination as to the existence and cause of a defect shall lie with AEL.
11.3 Where Service is provided AEL warrants that replacement parts will be free from defects in materials or workmanship and design for a period of 90 days from installation.
11.4 In the event of breach of warranty in respect of condition 11.3 only, AEL's sole liability and the Customer's sole remedy shall be:
11.4.1 in the case of Service, to re-perform the Service and/or
11.4.2 in the case of defective parts, to replace the part (subject to the Customer complying with the provisions of condition 11.2 in respect of the defective parts).
11.5 AEL accepts liability for death or personal injury to the extent that it results from the negligence of AEL, its employees (whilst in the course of their employment) or its agents (in the course of the agency) or for any breach by AEL of any statutory undertaking as to title, quiet possession and freedom from encumbrance.
11.6 Subject to any liability accepted by AEL hereunder and to the extent permitted by law AEL shall not otherwise be liable to the Customer for any loss or damage (direct or indirect) including for any loss of profits or other economic losses whatsoever and howsoever caused.
11.7 To the extent that AEL is held legally liable to the Customer for any single Transgression, AEL's liability for the same shall not exceed the price of the Products or £150,000 (whichever is the lower). A number of Transgressions, whether successive or concurrent, which together result in or contribute to substantially the same loss or damage shall be treated as a single Transgression. This restriction of liability shall not apply to any liability accepted by AEL in condition 11.5.
11.7.1 If any exclusion or limitation of liability or any other provision contained in the Contract is held invalid under any applicable statute or rule of law, it shall to that extent be deemed omitted, but if AEL thereby becomes liable for any liability which would otherwise have been excluded or limited, such liability shall be subject to the other exclusions limitations or provisions set out in condition 11.
11.8 If the Products are to be manufactured or any process is to be applied to the Products by AEL in accordance with a specification submitted by the Customer, the Customer shall indemnify AEL against all loss, damages, costs and expenses awarded against or incurred by AEL in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from AEL's use of the Customer's specification.
11.9 Products are not specifically designed, manufactured or intended for sale as parts, components or assemblies for the planning, construction, maintenance or direct operation of a nuclear facility. The Customer is solely liable if Products are used for these applications. The Customer will indemnify and hold AEL harmless from all loss, damage, expense or liability in connection with such use.
12.1 AEL shall, at its option, be entitled by notice to terminate all or any of its contracts with the Customer forthwith and recover all expenses, losses and damage resulting to AEL including (but without limitation to) loss of profit or other consequential loss if:
12.1.1 the Customer becomes insolvent, is unable to pay its debts when due, has a receiver appointed, files for bankruptcy, is the subject of involuntary bankruptcy, has its assets assigned, fails to make any payment to AEL on the due date or fails to take delivery within 14 days of notification by AEL that the Products are ready.
12.1.2 the Customer is in breach of the terms and conditions of any contract with AEL and shall fail to remedy the same within 21 days of notice (if the breach shall be remediable).
13 CUSTOMER PROPERTY
13.1 If any property of whatsoever nature of the Customer is used in connection with the Products the Customer shall indemnify AEL for any loss or claim suffered by AEL as a result of using such property.
14.1 Any notice, consent, notification, acknowledgement, authority or agreement required or referred to in the Contract shall be in writing, and shall be given to the party for whom it is intended at such party's registered or main office or last known address, and shall be given by registered or recorded delivery post, telex, or telefax transmission and shall be deemed to have been received 5 days after the date of posting or 1 day after the date of transmission as the case may be.
15.1 The Contract shall be governed in all respects by English Law and be subject to the sole jurisdiction of the English Courts.