1. DEFINITION

In these Conditions, unless the context requires otherwise, the following expressions shall have the following meanings:

“Agreement” the agreements (including any software licence), warranties, conditions, representations and other terms set out in these Conditions and in the Order Acknowledgement;

“Conditions” these Conditions of Sale;

“Customer” the party, named as Customer in the Order Acknowledgement;

“Astles Control Systems” Astles Control Systems Limited.

“Goods” the goods which are the subject of the Order Acknowledgement including the Software and the Hardware and all instruction manuals and specifications provided by Astles Control Systems to Customer;

“Hardware” means the computer, plc or microprocessor and all the equipment and operating systems forming part of the Goods;

“Order Acknowledgement” Astles Control Systems’s official written order acknowledgement of Customers order or Astles Control Systems’s invoice which ever of these documents is first issued to the Customer by Astles Control Systems;

“Price” the price charged to the Customer for the Goods and/or Services which shall be exclusive of VAT;

“Sale” includes manufacture and supply;

“Services” the services set out in the Order Acknowledgement including any telephone support;

“Software” all standard computer programs and computer programs incorporated in the Goods; and

“Warranty Period” from the date of despatch of the goods from Astles Control Systems for the period set out in the relevant product specification for the Goods.

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2. APPLICATION AND VARIATION OF THESE CONDITIONS

2.1. These Conditions together with any special conditions set out in the Order Acknowledgement shall be deemed to be incorporated in all agreements for the sale of any Goods and Services by Astles Control Systems to Customer and shall apply in place of and prevail over any terms or conditions contained or referred to elsewhere or implied by trade custom, practice or course of dealing. In the event of a conflict between these Conditions and special conditions in a Order Acknowledgement the Order Acknowledgement will prevail.

2.2. Software is licensed to Customer for use with the Goods only. Customer shall agree to the terms of Astles Control Systems’s applicable software licence in respect of Software, or (as applicable) shall procure the agreement of the end user of any Software to these terms. Any installation, commissioning, calibration, maintenance or other services undertaken by Astles Control Systems shall be subject to Astles Control Systems’s standard terms and conditions for such services. A copy of the said terms and conditions is available on request.

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3. FORMATION OF CONTRACT AND CANCELLATION

3.1. Astles Control Systems’s catalogues, price lists and quotations do not constitute offers made by Astles Control Systems unless they are expressed to be fixed quotations remaining open for a specified period and Astles Control Systems reserves the right to withdraw or revise the same at any time prior to the Order Acknowledgement.

3.2. Customer shall not cancel any order without Astles Control Systems’s prior consent in writing. Such consent may be made conditional on payment by Customer of an appropriate charge. No other obligation or agreement relating to the sale of the Goods and Services is binding on Astles Control Systems unless set out in the Agreement or in an amendment or addition to it agreed in writing by Astles Control Systems.

3.3. Representations, warranties or other statements made by Astles Control Systems , other than those expressly set out in the Agreement, shall not be binding upon Astles Control Systems unless they are expressly stated to have a contractual effect.

 

4. DOCUMENTATION AND SPECIFICATION

All drawings, designs, specifications and particulars of weights and dimensions submitted by Astles Control Systems remain the property of Astles Control Systems and are intended merely to describe the Goods and Services generally. They are not to be regarded as a warranty, representation of contractual term unless it is expressly so stated in the Order Acknowledgement. Customer shall ensure timely supply of information and free issue material as appropriate to enable Astles Control Systems to meet delivery dates.

 

5. PRICE AND VARIATION OF PRICE

5.1. The Prices for the Goods shall be as set out in the Order Acknowledgement. All Value Added Tax, Customs and Excise duties, import and export duties and all other taxes, tariffs and surcharges of any nature whatsoever now or hereafter levied or imposed in any country or territory either directly or indirectly in respect of the sale, supply, delivery or use of the Goods or payments for them or upon freight or other charges shall be borne by Customer and except as stated in the Order Acknowledgement are additional to the Prices in the Order Acknowledgement stated.

5.2. Where quoted prices are stated to be based in whole or in part on a conversion into Pounds Sterling of any other currency the Customer shall, subject to any applicable law relating to the regulation of prices, fully indemnify Astles Control Systems against any loss incurred by Astles Control Systems which arises or results from any variation in the rates of exchange between the date of the quotation and the date upon which payment shall become due by Astles Control Systems in relation to its relevant transaction in such other currency.

 

6. INVOICING AND PAYMENT

6.1. Subject to Astles Control Systems’s approval of Customer’s current credit rating, full payment for all invoiced items shall be made in the invoice currency within 30 days of invoice date unless otherwise stated in the Order Acknowledgement. Astles Control Systems shall be entitled to issue its invoice to the Customer upon despatch of the Goods and Services. Unless otherwise expressly approved in writing by Astles Control Systems, payments shall be taken to discharge Customer’s oldest debt.

6.2. If Customer fails to make payments on the due date, Astles Control Systems may, in addition to taking any other action provided by these Conditions:

6.2.1. charge interest on all overdue payments in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 as amended or re-enacted from time to time; and

6.2.2. suspend all further delivery of Goods to be made under the Agreement or further performance of any other contract with Customer, in which event Customer shall not be released in any respect from its obligations to Astles Control Systems under the Agreement or any such other contract.

6.3. Astles Control Systems reserves the right at its discretion at any time to withdraw any credit terms and substitute “Cash With Order” or “Cash On Delivery” terms.

 

7. DELIVERY

7.1. Unless otherwise expressly provided in the Order Acknowledgement, all sales are ex-works (Incoterms 2000). Where any special condition in the Order Acknowledgement provides that the Goods are sold on the basis of any other international trade term listed by the International Chamber of Commerce in Incoterms 2000, the meaning of such term shall be as set out in Incoterms 2000 as revised from time to time save where inconsistent with the provisions contained in these Conditions.

7.2. Customer shall inspect the Goods on receipt. Astles Control Systems shall be under no liability in respect of damages to Goods or incomplete delivery unless Customer’s written claim is received by Astles Control Systems within 7 days of receipt of the Goods (or in the case of missing or undelivered Goods, within 14 days of due date of receipt), followed within 21 days of Astles Control Systems’s request for such evidence of defect or shortage as Astles Control Systems may reasonably request. Section 32(3) of the Sale of Goods Act 1979 shall not apply to the Agreement.

7.3. Any period or date for dispatch of the Goods from Astles Control Systems stated in the Agreement is intended as an estimate only and is not a contractual commitment. Astles Control Systems may deliver the Goods in one or more installments. Where delivery is effected by installment each installment shall be treated as a separate contract. Failure by Astles Control Systems to make any delivery or part delivery in accordance with the Agreement or any claim by Customer in respect of such delivery or part delivery shall not entitle Customer to reject the balance of the Goods agreed to be purchased by Customer. At Customer’s request, Astles Control Systems may consent to postponement of dispatch beyond the dispatch date, subject to Customer assuming the risk in the Goods and paying storage charges.

7.4. Section 32(2) of the Sale of Goods Act 1979 shall not apply to the Agreement.. At the request of Customer, Astles Control Systems shall as agents for Customer arrange for carriage and transport insurance to the destination specified in Customer’s order on such terms as to carriage and insurance as Astles Control Systems considers appropriate, unless Customer specifies otherwise, and Astles Control Systems shall invoice Customer all carriage and insurance costs incurred. Customers shall meet the cost of any special packaging requested by Customer or any packaging rendered necessary by delivery by any means other than Astles Control Systems’s normal means of delivery.

 

8. SERVICES

Astles Control Systems shall provide and the Customer shall use the Services.

 

9. WARRANTY

9.1. Astles Control Systems warrants:

9.1.1. the Goods and the Hardware on or into which the Software is incorporated against defects in design, materials and workmanship for the Warranty Period;

9.1.2. the Software against significant deviation from the functional specifications set out in the documentation relating to the Goods within the Warranty Period but Astles Control Systems does not warrant that the Software will be error-free or that all errors will be corrected.

9.2. Customer shall promptly provide written particulars to Astles Control Systems on becoming aware of a defect in the Goods during the Warranty Period, and shall use its best endeavours to provide Astles Control Systems with all necessary access, facilities and information to enable Astles Control Systems to ascertain or verify the nature and cause of the defect and to carry out its warranty obligations.

9.3. Astles Control Systems’s obligations under this Condition 9 are limited to, at its option:

9.3.1. repairing, replacing, or refunding the cost of defective Goods, or parts of the Goods, provided Customer has returned the defective Goods or parts of the Goods carriage paid to Astles Control Systems; or

9.3.2. sending engineer(s) to effect repairs at Customer’s premises, in which case Customer shall be liable for the travelling and subsistence expenses of Astles Control Systems’s engineers. Astles Control Systems warrant that any repairs carried out by Astles Control Systems during the Warranty Period shall be performed with reasonable skill and care.

9.4. If Goods are found not to be defective or if any defect is attributable to Customer’s design or materials or operation of the Goods, Astles Control Systems will levy a testing charge (together with VAT if appropriate), and where relevant will return the Goods to Customer at Customer’s expense, and shall be entitled to payment in advance of the whole testing and transport charge before such return.

9.5. The warranty provisions of this Condition in respect of repaired or replaced Goods shall apply to such Goods for the unexpired balance of the Warranty Period. Notwithstanding the warranties set out in this Condition 9 where it is apparent from the Agreement or any specification or other document supplied by Astles Control Systems to Customer prior to the date of the Agreement that any item or component of the Goods was not manufactured by Astles Control Systems or any associated company of Astles Control Systems the Warranty Period shall in relation to such item or component of the Goods expire at the end of the period of the express warranty given to Astles Control Systems in respect thereof by the relevant supplier if shorter than the Warranty Period except if such shortened warranty period is unreasonable.

9.6. Astles Control Systems accepts no liability for defects caused by Customer’s design or installation of the goods; or if the Goods have been modified or repaired otherwise than as authorised in writing by Astles Control Systems; or if the Goods have not been operated, stored, or maintained as recommended by Astles Control Systems; or if the defect arises because of the fitting of the Goods to unsuitable equipment; or where the Customer has supplied free issue equipment upon which the defect is apparent; or where Customer has failed to observe the terms of payment for the Goods or any other obligation imposed by the Agreement.

9.7. Astles Control Systems warrants that the Services shall be performed with reasonable skill and care. Any element of the Services not so performed must be notified by the Customer to Astles Control Systems within three (3) months of the particular element of the Services having been carried out in which case Astles Control Systems’s obligations under this Condition 9.7 are limited at its option to reperforming those parts of the Services free of charge or repaying the relevant part of the Price.

 

10. LIMITATION AND EXCLUSION

10.1. Subject to Condition 9, Astles Control Systems shall be under no liability to Customer for any damages or losses, direct or indirect, resulting from the Services provided, defects in design, materials or workmanship, or from delays in delivery. Astles Control Systems shall have no liability for any indirect or consequential losses, damages or expenses suffered by Customer, however caused.

10.2. Except as specifically set out in the Agreement, any term, representation, condition or warranty in respect of the quality, fitness for purpose, condition, or description of the Goods or that the Goods are of satisfactory quality, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.

10.3. Nothing in these Conditions shall be interpreted as excluding or restricting any legal liability of Astles Control Systems for death or personal injury resulting from the negligence of Astles Control Systems, its employees, agents or sub-contractors or restricting any of Astles Control Systems’s legal obligations arising under Section 12 of the Sale of Goods Act 1979 or under the Consumer Protection Act 1987.

10.4. In the event that any exclusion of liability under this Agreement shall be held to be invalid for any reason and Astles Control Systems becomes liable for loss or damage that it may otherwise have been lawful to limit, such liability shall be limited to the Price as set out in the Order of Acknowledgement.

 

11. INSURANCE

Astles Control Systems maintains product liability insurance at a level it believes appropriate to its business. Customer may inspect the terms of Astles Control Systems’s cover on reasonable notice. Customer agrees that it is best able to assess and provide for its own insurance needs. Customer acknowledges that it is reasonable for Astles Control Systems to sell the Goods and Services and license the Software and fix their price on the basis of the exclusion and limitations of liability set out in these Conditions, and Customer agrees that it will be responsible for effecting such insurance cover as is suitable for its business in the light of any loss or damage that might arise from Astles Control Systems’s negligence or breach.

 

12. HEALTH AND SAFETY AT WORK

Customer undertakes that it will comply and will procure that its employees, customers, and every other person working with, on or near or using the Goods comply in full with the instructions and recommendations made in any manual or handbook provided by Astles Control Systems or other manufacturer of the Goods and that they will comply with all other instructions given in connection with the use or operation of the Goods. The Goods are designed to operate without danger to health and safety where correctly installed by competent personnel and used in accordance with the relevant standards, the designed rating, and accepted good industrial practice. Customer shall first obtain Astles Control Systems’s written approval before operation or use of the Goods under unusual conditions.

 

13. INTELLECTUAL PROPERTY

13.1. Astles Control Systems warrants that to the best of its knowledge and belief the Goods do not infringe any patents, designs, copyright or other such intellectual property rights in the UK.

13.2. In the event that it is alleged that the use or possession of the Goods by Customer infringes any third party intellectual property rights then:

13.2.1. Customer shall promptly notify Astles Control Systems in writing of any alleged infringement of which it has notice;

13.2.2. Customer shall not make any admission without Astles Control Systems’s consent; and

13.2.3. Astles Control Systems shall have sole control of any related negotiations or litigation, and any costs incurred or recovered shall be for Astles Control Systems’s account.

13.3. If at any time any allegation of infringement of patents, design or copyright is made in respect of the Goods or in Astles Control Systems’s reasonable opinion is likely to be made, Astles Control Systems may at its option and at its own expense either:

13.3.1. modify or replace the Goods without detracting from overall performance thereof, so as to avoid the infringement; or

13.3.2. procure for Customer the right to continue to use the Goods; or

13.3.3. repurchase the Goods at the price paid by Customer less depreciation at such rate as is applied by Astles Control Systems to its own equipment.

13.4. Customer shall indemnify Astles Control Systems against any and all liabilities claims and costs incurred by or made against it as a direct or indirect result of the carrying out of any work required to be done on or to the Goods in accordance with the requirements or specifications of Customer involving any infringement or alleged infringement of any rights of any third party.

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14. PASSING OF PROPERTY

14.1. The Goods shall remain the property of Astles Control Systems as legal and equitable owner and no property in or title to the Goods shall pass to Customer until their full price has been duly paid to Astles Control Systems. Where Goods include Software, the sale is subject to Condition 14.5 Until such time as the Customer becomes fully entitled to ownership of the Goods Customer shall keep the Goods in good condition and fully insured in their full replacement value against all risks insured against.

14.2. Failure to pay the price for the Goods and that of such other goods under this Agreement when due shall, without prejudice to any other remedies Astles Control Systems may have, entitle Astles Control Systems to repossess the Goods or as much of the Goods as Astles Control Systems may determine from any premises where they may be.

14.3. For the purposes of repossessing the Goods or any part thereof Customer hereby grants an irrevocable licence to Astles Control Systems, its employees or agents, to enter upon such premises and Customer shall pay to Astles Control Systems the cost of removal and transport of the Goods or any part of the Goods. Customer may in its ordinary course of its business sell and deliver the Goods in which the property remains with Astles Control Systems to any third party as Astles Control Systems’s agent, in a fiduciary capacity and for the account of Astles Control Systems. Customer shall upon request assign to Astles Control Systems the legal title of any right against any third party arising out of such sale. Customer shall be entitled to receive from Astles Control Systems by way of commission the excess of the proceeds of sale over the amounts due to Astles Control Systems from Customer.

14.4. Notwithstanding the provisions of this Condition, Astles Control Systems shall be entitled to bring an action against Customer for the price of the Goods in the event of non-payment by Customer by the due date as if the property in the Goods had already passed to Customer and/or shall have the right by notice in writing to Customer at any time after the agreed delivery date to pass the property in the Goods to Customer as from the date of such notice.

14.5. Software is sold subject to the terms of a licence agreement. It is a condition of the Agreement that the terms of the licence agreement are adhered to, and any breach of those terms will be considered a breach of contract. In particular, Astles Control Systems at all times reserves the legal and beneficial ownership in Software sold under licence by it.

 

15. INSOLVENCY AND DEFAULT

15.1. Astles Control Systems may by notice in writing to Customer terminate this Agreement or in its absolute discretion any other contracts with Customer so far as unperformed by Astles Control Systems immediately if:

15.1.1. Customer commits any breach of any of the terms (including, without limitation, terms concerning the time for payment of the purchase price) of this Agreement or any other contract with Astles Control Systems;

15.1.2. Customer compounds with or negotiates for any composition with its creditors generally;

15.1.3. or being an individual, Customer shall die or have a receiving order made against him or commit any act of insolvency;

15.1.4. the appointment of an administrator, the filing of documents with the court for the appointment of an administrator and the giving of a notice intention to appoint an administrator by the company of its directors or by qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986).

15.2. In the event of such termination: Customer shall immediately on Astles Control Systems’s request deliver to Astles Control Systems any Goods which are in the possession or control of Customer but in which the property remains with Astles Control Systems; and, if Customer fails to do so Astles Control Systems shall be entitled to repossess the same and for such purpose to enter into and upon the premises of Customer without being liable for any damage caused thereby and Customer shall indemnify Astles Control Systems from and against any liability to any third party in respect of any such damage and from and against all actions, proceedings, claims, demands, costs, damages and expenses howsoever arising; and Astles Control Systems shall be entitled by notice in writing to Customer to declare immediately due and payable any amounts outstanding from Customer to Astles Control Systems under this or any other contract (such sums thereby becoming immediately due and payable); and Astles Control Systems may claim damages from Customer for breach of the Agreement. The provisions of this Condition and the exercise by Astles Control Systems of its rights under it are without prejudice to any other rights of Astles Control Systems.

 

16. FORCE MAJEURE

Neither party shall be liable for breach of the Agreement other than payment if and to the extent that fulfillment of a term or condition hereof has been prevented, hindered or delayed by force majeure as defined in this Condition and in such event the time for fulfillment of such a term shall be extended for such period as is reasonable in all the circumstances. The expression “force majeure” shall mean any event of circumstances beyond the immediate control of either party, including without prejudice to the generality of the foregoing, strikes, lock-outs, trade disputes, accident to plant or machinery, shortage of any material, riots, civil commotion, epidemic, accident, quarantines or regional medical crisis, war national or international, emergency, destruction or damage due to natural forces, fire, flood, explosion, and compliance with orders or requests of any national or local authority.

 

17. EXPORT

17.1. In the case of Goods for delivery outside UK, the following conditions shall have effect and, in case of inconsistency with other Conditions herein, shall prevail:

17.1.1. Payment shall be made in cash or by credit transfer at the date of the Order Acknowledgement..

17.1.2. The risk of loss or damage to Goods shall pass to Customer immediately on appropriation to Customer’s order.

17.1.3. Customer shall satisfy himself and be entirely responsible for ensuring compliance with all customs, import, export and/or trans-shipment regulations applicable to the importation of the Goods.

17.1.4. Astles Control Systems will assist Customer by supplying all non-confidential or non-secret information reasonably required by Customer, but giving of such information shall not constitute a representation nor be regarded as having contractual effect.

 

18. GOODS CONTROLLED BY EXPORT LICENCES

18.1. Customer agrees to comply in full with UK export licensing requirements and restrictions with regard to export of Goods

18.2. Where products originating in the USA are covered by USA government export regulations, the Customer agrees to comply in full with those laws and regulations before re-exporting those products.

 

19. ASTLES CONTROL SYSTEMS EMPLOYEES

The Customer agrees not to employ any Astles Control Systems personnel for a period of six (6) months after such personnel leave the employment of Astles Control Systems except with the written permission of Astles Control Systems. In the event that a Customer engages any Astles Control Systems personnel (either directly or indirectly) the Customer shall pay an introduction fee of fifty two weeks, or the equivalent, of the engaged person’s remuneration.

 

20. ASSIGNMENT

Customer shall not assign or otherwise transfer all or any of its rights, interests or obligations under the Agreement without the prior written consent of Astles Control Systems. Any or all of the Astles Control Systems’s rights or obligations under this Agreement or other contract may be assigned by Astles Control Systems and Customer shall not assert against an assignee any defence (other than actual payment) set-off or counterclaim which the Customer may have against Astles Control Systems.

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21. SET-OFF

Customer undertakes to make any payment due hereunder in full without any deduction, offset or counterclaim whatsoever.

 

22. NOTICES

Any notice required under these Conditions shall be deemed to have been given if delivered by hand or sent by prepaid first class post, facsimile or electronic mail (confirmed by telephone and followed by notice by post) to the party concerned at its last known address, and deemed to have been received on the date of dispatch, if delivered by hand or sent by facsimile or electronic mail, and on the third day after posting, if sent by post.

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23. THIRD PARTY RIGHTS

It is the intention of the parties that no term of this Agreement may be enforced by any person who is not a party to this Agreement (“Third Party”) notwithstanding that any such term of this Agreement may purport to confer, or may be construed as conferring, any benefit on such Third Party and irrespective of whether such Third Party is identified in this Agreement. The Contracts (Rights of Third Parties) Act 1999 shall not apply to any provisions of this Agreement.

 

24. INTERPRETATION AND LAW

24.1. Headings are included in these Conditions for convenience and identification only, and are not to be taken to limit the meaning of any part of these Conditions. If any provision or part of a provision of the Agreement should be held unenforceable or in conflict with the law of any relevant jurisdiction, any part so held unenforceable or invalid shall be severed from the remainder of the Agreement which shall not be affected by such severance.

24.2. The Agreement represents the complete agreement between Astles Control Systems and Customer with regard to the Goods and Services and contains all agreements, warranties, conditions, representations and other terms agreed, made or relied upon by either party in connection with the Goods and Services.

24.3. The rights of Astles Control Systems shall not be prejudiced or restricted by any indulgence or forbearance extended to Customer and no waiver of any breach shall operate as a waiver of any subsequent breach. These Conditions and every contract connected therewith shall be governed exclusively by English law, and any claim or dispute arising shall be submitted to the English courts.