Terms of Business
Terms & Conditions of Business
Business Day – A day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions – The terms and conditions set out in this document as amended from time to time in accordance with clause 11.4.
Contract -The contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer – The person or firm who purchases the Goods from the Supplier.
Delivery Location – Has the meaning given in clause 4.2.
Force Majeure Event -An event, circumstance or cause beyond a party’s reasonable control.
Goods -An event, circumstance or cause beyond a party’s reasonable control.
Order – The Customer’s order for the Goods, as set out in the Customer’s purchase order form.
Specification – Any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Customer and the Supplier.
Supplier – Geosense Limited (registered in England and Wales with company number 08445199).
- 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 law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 Any samples, drawings, descriptive matter or advertising produced by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures which are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.5 A quotation for the Goods given by the Supplier shall not constitute an offer. All quotations are made subject to the availability of materials and on the basis that if required, all necessary licences, permissions and consents required for the Supplier to perform the Contract shall be obtained by the Customer at the Customer’s additional expense. A quotation shall only be valid for a period of 30 Business Days from its date of issue unless an alternative period is stated in the quotation.
3.1 The Goods are described in the Specification.
3.2 To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer:
3.2.1 the Customer shall indemnify the Supplier 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 the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification. This clause 3.2 shall survive termination of the Contract; and
3.2.2 It shall be the Customer’s responsibility to assess the suitability of the Goods for the Customer’s purpose, for which they are to be used, and no guarantee or representation is given or to be implied as to the suitability of the Goods for any particular purpose, even when the Goods are manufactured to the Customer’s special instructions.
3.3 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
3.4 The Customer will be responsible for the costs of materials and labour incurred by the Supplier by cancellations or design changes, once the Order has been accepted.
3.5 For Goods designated as standard stock by the Supplier, the Supplier will, at its sole discretion, accept the return of those Goods within 30 Business Days of Delivery, subject to the goods being in appropriate condition and subject to a minimum handling charge of 27% of the Contract price for those Goods, provided always that such Goods were originally purchased from the Supplier and that 5 Business Days prior notice of return is given by the Customer. In such cases the Customer shall be obliged to provide full details of the Order and associated documentation. In all cases the Customer shall be responsible for the cost of returning the Goods to the Supplier.
4.1 The Supplier shall ensure that:
4.1.1 each delivery of the Goods is accompanied by a delivery note that shows the type and quantity of the Goods and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.2 if the Supplier requires the Customer to return any packaging materials to the Supplier, that fact is clearly stated on the delivery note. The Customer shall return any such packaging materials to the Supplier at the Customer’s expense.
4.2 Unless otherwise agreed by the Supplier in writing, delivery of the Goods shall be in accordance with Incoterms 2020 or any subsequent replacement in force at the time of the contract and as specified in the quotation. Where the quotation specifies ex-works the Customer shall collect the Goods from the Supplier’s premises or such other location as may be advised by the Supplier prior to delivery (Delivery Location) within three Business Days of the Supplier notifying the Customer that the Goods are ready.
4.3 Delivery is completed on the completion of loading of the Goods at the Delivery Location.
4.4 The Supplier shall aim to meet the delivery dates quoted in the quotation or Order Acknowledgement, but any dates quoted are approximate only, and the time of delivery is not of the essence.
4.5 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 If the Customer fails to take delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
4.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
4.6.2 the Supplier shall store the Goods until delivery takes place and charge the Customer for all related costs and expenses (including insurance).
4.7 If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.8 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.9 Where the Supplier arranges for delivery using a carrier then unless the Supplier agrees otherwise in writing the Supplier’s responsibility shall cease when the Goods are put in charge of the carrier.
4.10 Where the Goods are delivered by the Supplier’s transport it is done so on the understanding that the delivery point is on hard roads and that the Customer is responsible for off-loading and storage thereof. The Customer must provide his own labour for unloading the Goods and must unload the goods and release the Supplier’s vehicle promptly. A charge may be made for any excessive waiting time. Any loss damage or delay occasioned on or after unloading shall be the responsibility of the Customer, even if the Supplier’s driver provides assistance.
4.11 The Supplier and all persons authorised by the Supplier shall at all times have full and free access to Customer’s site by routes convenient to the Supplier and uninterrupted occupation thereof for the purpose of delivering the Goods and carrying out any works. If in the event of access to the site being unsuitable or the Customer’s labour not being available to unload the Goods, the Goods will be returned to the Supplier’s works and hauling, handling and storage costs will be charged for.
5.1 The Supplier warrants that on delivery, and for a period of 24 months from the date of delivery (warranty period), the Goods shall:
5.1.1 conform in all material respects with the Specification; and
5.1.2 be free from material defects in design, material and workmanship.
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to the Supplier 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;
5.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer returns such Goods to the Supplier’s place of business at the Customer’s cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
5.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow the Supplier’s or any manufacturer’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.3.3 the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
5.3.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.3.6 the Goods differ from their description or the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 Where under the provisions of this clause 5, the Customer alleges the Goods to be defective, the Supplier shall not be liable for any costs of dismantling or re-assembling any structure of equipment to remove any Goods alleged to be defective or not in accordance with the Contract or any description as aforesaid or for any other removal costs or for any transport costs in relation to such Goods.
5.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.7 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
5.8 A claim in relation to any Goods in accordance with any of the foregoing provisions will not entitle a Customer to cancel the Contract or any part thereof or to refuse to take delivery of or pay for the Goods or any other Goods (whether under the same or any other contract).
5.9 The Supplier warrants in relation to the Goods not of the Supplier’s manufacture (including but not limited to parts and components supplied by others for the Goods manufactured by the Supplier) that it will so far as it is able to do so give the Customer the benefit of any express guarantee or warranty by the manufacturer or supplier of such goods and of any other rights which the Supplier has against the manufacturer or supplier in respect thereof.
- TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
6.2.1 the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer 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
6.2.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 9.1.2 to clause 9.1.4; and
6.3.5 give the Supplier such information as the Supplier may reasonably require from time to time relating to:
126.96.36.199 the Goods; and
188.8.131.52 the ongoing financial position of the Customer.
6.4 Subject to clause 6.4, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
6.4.1 it does so as principal and not as the Supplier’s agent; and
6.4.2 title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
6.5 At any time before title to the Goods passes to the Customer, the Supplier:
6.5.1 may by notice in writing, terminate the Customer’s right under clause 6.4 to resell the Goods or use them in the ordinary course of its business; and
6.5.2 may require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, the Supplier may enter any premises of the Customer or of any third party where the Goods are stored in order to recover them, without being responsible for any damage caused.
- PRICE AND PAYMENT
7.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Supplier’s published price list in force as at the date of delivery.
7.2 The Supplier may, by giving notice to the Customer at any time up to 10 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.2.1 any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 The price of the Goods:
7.3.1 excludes amounts in respect of value added tax (VAT) or other tax or duty relating to the performance of the Contract, which the Customer shall additionally be liable to pay to the Supplier at the prevailing rate, subject to the receipt of a valid VAT (or other applicable) invoice; and
7.3.2 excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.4 Orders placed with the Supplier for Goods will be subject to a minimum charge of £5.00 net value excluding V.A.T. and delivery charge.
7.5 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery. Where delivery of the Goods are spread over a number of instalments, each consignment will be invoiced or delivered as a separate item and each invoice will be treated as a separate account and be payable accordingly.
7.6 The Customer shall pay each invoice submitted by the Supplier:
7.6.1 where the Customer is located in the UK:
184.108.40.206 prior to delivery of the Goods; or
220.127.116.11 where the Supplier, at its sole discretion, agrees credit terms for the Customer, no later than the last Business Day of the month following the month the Goods were invoiced; and in either case;
18.104.22.168 in full and in cleared funds to a bank account nominated in writing by the Supplier, and
7.6.2 where the Customer is located outside of the UK, in accordance with the terms and currency of payment as stated in the quotation, Order and invoice; and time for payment shall be of the essence of the Contract.
7.7 Where there is a requirement for letters of credit, these should be irrevocably drawn at sight with Barclay’s Bank plc unless otherwise agreed. All charges incurred in establishing the letters of credit will be for the Customer’s account.
7.8 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier’s remedies under clause 9 (Termination), the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.7 will accrue each day at 5% a year above the Bank of England’s base rate from time to time, but at 5% a year for any period when that base rate is below 0%.
7.9 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
- LIMITATION OF LIABILITY
8.1 The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £1,000,000 per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
8.2 The restrictions on liability in this clause 8 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
8.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
8.3.1 death or personal injury caused by negligence;
8.3.2 fraud or fraudulent misrepresentation;
8.3.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
8.3.4 defective products under the Consumer Protection Act 1987.
8.4 Subject to clause 8.3, the Supplier’s total liability to the Customer shall not exceed £1,000,000.
8.5 Subject to clause 8.3, the following types of loss are wholly excluded:
8.5.1 loss of profits;
8.5.2 loss of sales or business;
8.5.3 loss of agreements or contracts;
8.5.4 loss of anticipated savings;
8.5.5 loss of use or corruption of software, data or information;
8.5.6 loss of or damage to goodwill; and
8.5.7 indirect or consequential loss.
8.6 This clause 8 shall survive termination of the Contract.
9.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract with immediate effect by giving written notice to the Customer if:
9.1.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so;
9.1.2 the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.1.3 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
9.1.4 the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
9.2 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 9.1.2 to clause 9.1.4, or the Supplier 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.
9.3 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
9.4 Without limiting its other rights or remedies, the Supplier may, where a Customer orders Goods of a type, size or quality not produced by the Company in the ordinary course of its business, the Supplier will use all reasonable endeavours to execute the Order. If it subsequently proves impossible, impracticable or uneconomical to carry out or complete the Order, the Supplier reserves the right to terminate the Contract or the incomplete balance thereof, in which event the Customer will only be liable to pay for such part of the Contract as has been performed.
9.5 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods supplied or where manufacture has begun on Goods being made to order but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
9.6 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
9.7 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
- FORCE MAJEURE
Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
11.1 Assignment and other dealing. The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, 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 the Supplier.
11.2 Entire agreement. This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.
11.3 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.4 Waiver. 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.
11.5 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 11.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
11.6.1 Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case).
11.7 Third party rights. Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
11.8 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
11.9 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
BAF/001 V1.0 October 2020