Seeley International | Conditions of Sale

SEELEY INTERNATIONAL - CONDITIONS OF SALE

1. Interpretation

In these Terms and Conditions, the following words and phrases shall have the following meanings:

1.1 “Buyer” means the person, firm, company, or entity who purchases the Products from the Company;

1.2 “Company” means Seeley International (Europe) Limited;

1.3 “Contract” means the contract between the Company and the Buyer which shall be deemed to incorporate these Terms and Conditions;

1.4 “Intellectual Property” means brand names, trademarks, images, copyright, or other intellectual property of the Company; and

1.5 “Products” means any goods supplied or to be supplied by the Company to the Buyer.

2. General

2.1 The Buyer agrees to purchase Products from the Company subject to these Terms and Conditions, to the exclusion of all other terms and conditions, including any such terms and conditions that are purported to be included or applied by the Buyer.

2.2 Unless expressly stated in writing by the Company, the Company shall not be bound by any other terms, even those published by the Buyer subsequent to the communication by the Company of its terms.

2.3 For the avoidance of doubt, the Buyer agrees that the Company will not be bound by any terms set out in order forms or other documentation generated by the Buyer nor will any terms in the Buyer’s documentation affect the validity and enforceability of this Contract.

2.4 The Buyer warrants that the Products are purchased by it for the purpose of re-sale in the course of its business and not for the Buyer’s personal, domestic or household use or consumption.

3. Price

3.1 The price for the Products shall, unless otherwise agreed in writing, be the Company’s quoted price.

3.2 The price for the Products shall be exclusive of all costs of carriage (including freight), insurance, duty and taxes which the Buyer shall pay in addition, unless otherwise agreed in writing.

3.3 The Buyer acknowledges that the Company has the right, any time and from time to time, to modify any or all of the prices for the Products.

3.4 The Buyer shall pay such deposit as the Company shall direct.

4. Orders

4.1 Orders placed by the Buyer once accepted by the Company are binding and irrevocable and cannot be varied, delayed, withdrawn or cancelled by the Buyer unless the Company provides written consent.

4.2 Any agreement to accept any return of the Products must be in writing signed by the Company. The Buyer shall pay all costs of carriage (including freight) and other charges to return the goods, plus any administration fee or return fee charged by the Company.

4.3 The Company reserves the right to discontinue the manufacture and sale of, or vary the specifications of, any of the Products.

5. Delivery

5.1 Any dates specified by the Company for delivery of the Products are intended to be an estimate only. If no date is specified for delivery of the Products, delivery shall be within a reasonable time. The Company shall endeavour to meet the reasonable requirements of the Buyer for delivery dates but no guarantee of delivery is given whether or not specified in an order accepted by the Company.

5.2 In the event of any shortage in the production or supply of the Products for any reason, the Company reserves the right to allocate its supplies of the Products to such of its buyers as it thinks fit.

5.3 The Company shall not be liable for any loss, whether direct or consequential, economic or loss of profits or otherwise, arising directly or indirectly out of any delay in the delivery or supply of the Products nor will any delay entitle the Buyer to terminate or rescind the Contract.

5.4 Delivery will be made from the Company’s nearest appropriate warehouse to the Buyer’s place of business. Except as otherwise agreed in writing, the Buyer shall be responsible for all costs of carriage (including freight), insurance, duty and taxes applicable to the Buyer’s purchase and sale of the Products.

6.1 Payment shall be made by wire transfer to the Company before the order is shipped or on such other terms as agreed in writing. Payment shall not be deemed to have taken place until the receipt of cleared funds by the Company.

6.2 Interest on any payments not made by the Buyer by the due date shall accrue at the maximum rate permissible under the Late Payment of Commercial Debts (Interest) Act 1998 (United Kingdom) and relevant regulations (“the Late Payment Legislation”). Further, the Company may also recover the maximum applicable fixed sum stipulated by the Late Payment Legislation, and if the reasonable costs it incurs in recovering the debt are not met by the fixed sum, it shall also be entitled to recover from the Buyer a sum equivalent to the difference between the fixed sum and those costs. Further, all bank charges for cheques returned for insufficient funds shall be paid by the Buyer immediately together with all other sums then due.

6.3 Payment for orders placed will become immediately due if:

(a) the Buyer commits any act of bankruptcy or insolvency;

(b) a meeting of the Buyer’s creditors is called;

(d) a receiver of any of the Buyer’s assets is appointed;

(e) the Buyer goes into voluntary administration or is placed into any other form of external administration;

(f) a petition to bankrupt or liquidate the Buyer is issued; or

(g) an amount due remains unpaid as at the due date.

7. Risk in and Ownership of the Products

7.1 The Company shall be under no liability whatsoever to the Buyer in respect of any Products that become damaged or unsaleable (including without limitation any loss, damage or deterioration to the goods) after delivery to the Buyer. The Buyer is advised to obtain appropriate insurance cover.

7.2 Property in the Products supplied will not pass to the Buyer until they and all other Products supplied by the Company to the Buyer, have been paid for in full and all monies owing to the Company have been paid in full.

7.3 The Buyer acknowledges that until all Products supplied to the Buyer have been paid for in full, the Buyer is in possession of the goods solely as bailee for the Company.

7.4 The Buyer’s right to possession of the Products ceases if payment for the Products is due under clause 6.3 but not paid or is otherwise overdue and not paid. In that event, the Buyer irrevocably authorises the Company to enter any premises where the Products are, or are reasonably thought to be, and repossess them. The Company may do so, even if the Products are incorporated into other goods or items which do not belong to the Company, but they can be removed without damage to the goods or items;

7.5 Until property in Products supplied passes to the Buyer:

(a) the Buyer may use them in other goods or items on condition that the goods or item (“goods”) will be the Company’s property as a security for full payment for the Products;

(b) until the Buyer uses or sells the goods or Products, the Buyer must store them separately and so that they are clearly identifiable as the Company’s property;

(c) the Buyer may fix the goods or Products into the articles of any other person on condition that the resulting item is owned in common by the Company and that other person;

(d) the Buyer may sell the goods or the Products in the ordinary course of the Buyer’s business on the following conditions:

(i) the Buyer makes the sale as the Company’s agent and bailee;

(ii) any proceeds of sale received by the Buyer are held by the Buyer on trust for the Company to the extent that the proceeds of sale relate to the Company’s Products which are incorporated into the goods or item;

(iii) the Buyer must keep the Company’s proportion of the proceeds of sale separately and so that they are clearly identifiable as the Company’s; and

(iv) if the Buyer has not received the proceeds of sale, the Buyer will, if the Company requires, transfer to the Company the Buyer’s rights in respect of the sale price.

(e) if payment for the goods is due under clause 6.3 but not paid or is otherwise overdue and not paid, the Company may take any one or more or all of the following actions without notice:

(i) commence legal action to recover the money owing on the Products;

(ii) retake possession of them;

(iii) take possession of the goods referred to in clause 7.5(a);

(iv) take and/or claim the proceeds of sale referred to in clause 7.5(d) paid or due to be paid; and

(v) take any other action based on the Company’s rights set out above.

(f) the Buyer must not destroy or deface any identifying mark on the Products or their packaging; and

(g) the Buyer must maintain the Products in satisfactory condition insured with the Company’s interest noted on the policy and hold any proceeds of such insurance on trust for the Company and not mix these proceeds with any other money.

7.6 In addition to any lien to which the Company may be entitled by statute or otherwise, in the event of any action or proceedings in which the Buyer’s solvency is involved or in issue or property in the Products supplied does not pass as provided in clause 7.2 hereof, the Company shall be entitled to a general lien in respect of all property or goods belonging to the Buyer in the Company’s possession, custody, or control for the unpaid price of all Products supplied and/or all monies owed by the Buyer to the Company.

8. Obligations of the Buyer

8.1 The Buyer shall not create any liability or assume any obligation of any kind on behalf of the Company for any purpose whatsoever without the Company’s written consent.

8.2 The Buyer agrees that it shall:

(a) conduct business in a manner that reflects favourably at all times on the Products and the good name, goodwill and reputation of the Company;

(b) avoid deceptive, misleading or unethical practices that are or might be detrimental to the Company, the Products or the public, including but not limited to disparagement of the Company or the Products;

(d) make no representations with respect to the Company or the Products that are inconsistent with the promotional materials and other literature distributed by the Company, including all liability limitations and disclaimers contained in such materials, without the Company’s written consent.

9. Installation

9.1 The Company is not responsible for the installation or commissioning of the Products, nor is the Company responsible for the delivery of the products by the Buyer to its customers.

9.2 The Buyer must ensure that all installers are suitably qualified persons and install and commission Products with all due care and skill, and in compliance with the Company’s installation instructions accompanying delivery of each Product and any service bulletins issued by the Company, and in compliance with all relevant laws, regulations and Standards, and having obtained all necessary consents and approvals required to undertake the installation.

9.3 The Company is not responsible to any customer of the Buyer for any failure in installation or commissioning of the Products (“Installation failure”). The Buyer acknowledges that it is responsible for and must rectify any Installation Failure at its own cost.

9.4 The Buyer indemnifies the Company for all or any liabilities and costs incurred by the Company associated with any claim or complaint made against the Company arising directly or indirectly as a result of or in connection with an Installation Failure by the Buyer.

10. Warranties

10.1 Products sold pursuant to this Contract carry a warranty as detailed in the Company warranty documentation accompanying delivery of a Product, or as otherwise specified in writing by the Company (“Warranty”). If there is no Company warranty documentation delivered with a Product, or nothing specified in writing by the Company, then the Product does not carry a warranty from the Company.

10.2 The Buyer must be familiar with the current Company Warranty pertaining to each Product being sold by the Buyer and must provide a copy of such a Warranty to any person who requests information on Company Product warranties.

10.3 The Buyer must not give any express or implied warranties or guarantees as to the Products, except as authorised by the Company in writing or required by law, nor publish any advertisement or written document of any kind accompanying or relating to the Products purporting to contain any such warranty, guarantee or undertaking on the part of the Company in relation to the Products.

10.4 Despite clause 10.3, the Buyer may give its own warranty or guarantee in relation to any Product, provided that the Buyer expressly discloses to the customer acquiring the Product that it is the Buyer’s own warranty or guarantee and not the Company’s.

10.5 The Buyer indemnifies and will keep indemnified the Company against all actions, claims, suits and demands of any kind whatsoever which may be brought or made against the Company in respect of any breach by the Buyer, its agents or servants of clause 10.3 and/or clause 10.4.

10.6 The benefits conferred on a customer by the Company’s Warranties are in addition to all other rights and remedies in respect of the Products which any customer may have under any consumer law.

10.7 The Buyer agrees that all conditions, warranties or other terms implied by statute or common law are expressly excluded to the fullest extent permitted by law.

10.8 If a customer makes a claim to the Buyer under the Company Warranty, the Company will service the Product for the customer in accordance with the terms of the applicable Warranty (“Warranty Service”).

10.9 Warranty Services provided by the Company to a customer will be performed by an authorised service agent (“Seeley Service Agent”).

10.10 The Buyer must ensure that all customers are aware that the Product must be maintained as recommended in any owner’s manual and that all routine adjustments considered to be part of maintenance are not covered by warranty.

10.11 The Buyer must ensure that on completion of an installation the customer is given the owner’s manual and the terms of any Company Warranty and understands how to operate the Product. The Company recommends that the Buyer implement a formal commissioning and education session with each customer to minimize service calls resulting from inadequate customer education.

10.12 Should a Seeley Service Agent attend at the customer’s site to undertake a Warranty Service and discover that the problem with the Product is connected to commissioning, installation inadequate customer education, inadequate maintenance, or the non-use of Seeley manufactured/approved spare parts, and not because of a fault or defect in the Product or Seeley spare parts, then the Company may require the Buyer to pay or reimburse to the Company all of the costs charged by the Service Agent in connection with the attendance. In addition, warranty will be void if it is found that non-Seeley manufactured spares parts have been used in the maintenance of the product, or if maintenance procedures have not been carried out in the time periods required.

11. Intellectual Property

11.1 The Buyer shall ensure the integrity of the Company’s brands is maintained at all times, and shall not use Intellectual Property without written permission of the Company. Where such permission is given, the Buyer will only use Intellectual Property in the manner permitted by the Company.

11.2 The Buyer will immediately bring to the attention of the Company any improper or wrongful use or infringement of Intellectual Property which comes to the Buyer’s notice or attention.

Exclusions and Limitations of Liability

12.1 The only conditions and warranties which are binding on the Company in respect of the Products or any services or advice supplied by it to the Buyer are those imposed and required to be binding by statute and those expressly set out in this Contract. All other conditions and warranties are expressly excluded to the fullest extent permitted by law.

12.2 For liability of any kind whatsoever (including liability for breach of any condition or warranty implied by statute or set out in this Contract), which cannot be lawfully excluded but can be limited, the Company’s liability is limited, at the Company’s option, to and completely discharged:

(a) in the case of the Products, by either

(i) the supply of equivalent Products; or

(ii) the replacement of the Products; or

(iii) repairing the Products or paying the cost of having the Products repaired; and

(b) in the case of advice or services, by supplying the advice or services again.

12.3 The Company has no liability (including in negligence) to any person for:

(a) any loss or damage consequential or otherwise suffered or incurred by that person in relation to the Products or advice, recommendations, information or services; and

(b) in particular, without limiting clause 12.3(a), any loss or damage consequential or otherwise suffered or incurred by that person caused by or resulting, directly or indirectly from any failure, defect or deficiency of any kind of or in the Products or advice, recommendations, information or services.

12.4 In no event will the Company be liable for any indirect, punitive, special, incidental, consequential or economic loss or damage in connection with or arising out of this Contract (including loss of business, revenue, profits, use, data or other economic advantage), however caused and regardless of the theory of liability, even if the Company has been previously advised of the possibility of such damages, and even if any exclusive remedy provided for herein fails of its essential purpose.

12.5 The Buyer agrees that the Company has no liability in tort or otherwise for any personal injuries or in respect of delivery or any subsequent use of the Products (or supply of services), except that which cannot be excluded by law (in which case that liability is limited to the maximum extent allowable by law).

13. Indemnity

13.1 In addition to the indemnity provided under clause 10.5 above, the Buyer indemnifies the Company against:

(a) all losses incurred by the Company;

(b) all liabilities incurred by the Company; and

(c) all costs actually payable by the Company to its own legal representatives and other expenses incurred by the Company in connection with a demand, action, arbitration or other proceeding (including mediation, compromise, out of court settlement or appeal); arising directly or indirectly as a result of or in connection with any negligent or reckless act or omission of the Buyer or any of its employees or agents or a breach or non-observance of this Contract by the Buyer.

13.2 The Buyer must pay to the Company all liabilities, costs and other expenses referred to in clause 13.1, whether or not the Company has paid or satisfied them.

14. Force Majeure

Under no circumstances shall the Company be responsible to the Buyer or anyone else for loss, damage, detention, delay or failure to deliver all or any parts of the Products resulting from causes beyond its control including but not limited to COVID-19 or other pandemic, fires, strikes of its own or other employees, accident, labour trouble, acts of nature, embargoes, war, civil disturbance, vendor problems, container shortages, wrecks or delays in transportation, inability to obtain supplies and raw materials, requirements or regulations of any civil or military authority.

15. Severability

If any provision of these Terms and Conditions is found to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the other provisions of these Terms and Conditions and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect unless the severance of the invalid or unenforceable provision would unreasonably frustrate the commercial purposes of these Terms and Conditions.

16. Waiver

16.1 No waiver of any rights under these Terms and Conditions shall be effective unless mutually agreed in writing.

16.2 The waiver by either party of a breach or default of any of the provisions of these Terms and Conditions by the other party shall not be construed as a waiver of any succeeding breach of the same or other provisions nor shall any delay or omission on the part of either party to exercise or avail itself of any right power or privilege that it has or may have hereunder operate as a waiver of any breach or default by the other party.

17. Entire Agreement

The Contract constitutes the entire and only agreement between the parties hereto and overrides and supersedes any prior arrangements or oral discussions and shall not be modified except in writing by agreement between the parties. The headings used herein shall not be used to construe meaning or intent or affect the interpretation of the Contract.

18. Governing Law and Arbitration

Any dispute arising out of or in connection with the Contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration Rules, which Rules are deemed to be incorporated by reference into this clause.

The number of arbitrators shall be one.

The seat, or legal place, of arbitration shall be London, England.

The language to be used in the arbitral proceedings shall be English.

The governing law of the Contract shall be the substantive law of England, excluding application of the UN Convention on Contractors for the International Sale of Goods.

The prevailing party shall be entitled to recovery of its reasonable legal fees and costs, including but not limited to all arbitrator’s fees and costs. Arbitral awards shall be enforceable by any court of competent jurisdiction.