Terms & Conditions

General Terms & Conditions of Sale 
  1. Definitions
    1. In these conditions the following words have the following meanings:
      1. Contract” means any contract between the Seller and the Purchaser for the sale and purchase of the Goods, incorporating these conditions;
      2. Delivery Point” means the place where delivery of the Goods is to take place under condition 3;
      3. Goods means any goods agreed in the Contract to be supplied to the Purchaser by the Seller (including any part or parts of them).
      4. Purchaser” means the person(s), firm or company who purchases the Goods from the Seller.
      5. Seller” means ESDT Operations Ltd a limited company registered in England and Wales with company number 09834990 whose registered office is at Euro House, 1394 High Road, London N20 9YZ.
    2. In these conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
    3. In these conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
    4. In these conditions headings will not affect the construction of these conditions.
  1. Application of terms
    1. Subject to any variation under condition 2.3 the Contract will be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Purchaser purports to apply under any purchase order, confirmation of order, specification or other document).
    2. No terms or conditions endorsed upon, delivered with or contained in the Purchaser’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
    3. These conditions apply to all the Seller’s sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by an officer of the Seller. Nothing in this condition will exclude or limit the Seller’s liability for fraudulent misrepresentation.
    4. Each order for Goods by the Purchaser from the Seller shall be deemed to be an offer by the Purchaser to purchase Goods subject to these conditions.
    5. No order placed by the Purchaser shall be deemed to be accepted by the Seller until a written acknowledgement of order is issued by the Seller or (if earlier) the Seller delivers the Goods to the Purchaser.
    6. The Purchaser must ensure that the terms of its order and any applicable specification are complete and accurate.
    7. Any quotation is given on the basis that no contract will come into existence until the Seller despatches an acknowledgement of order to the Purchaser. Any quotation is valid for a period of 60 days only from its date, provided that the Seller has not previously withdrawn it. Beyond this time the Seller reserves the right to adjust prices and delivery time estimates.
  1. Delivery
    1. Unless otherwise agreed in writing by the Seller, delivery of the Goods shall take place at the Seller’s place of business.
    2. Unless otherwise agreed in writing by the Seller, the Purchaser will take delivery of the Goods within 7 days of the Seller giving it notice that the Goods are ready for delivery.
    3. Any dates specified by the Seller for delivery of the Goods are intended to be an estimate only and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
    4. Subject to the other provisions of these conditions the Seller will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods, where such delay was not caused directly by the Seller’s actions or where such delay was caused by a Force Majeur event or any other cause beyond the Seller’s direct control, nor will any delay entitle the Purchaser to terminate or rescind the Contract.
    5. If for any reason the Purchaser will not accept delivery of any of the Goods when they are ready for delivery, or the Seller is unable to deliver the Goods on time because the Purchaser has not provided appropriate instructions, documents, licences or authorisations:
      1. risk in the Goods will pass to the Purchaser (including for loss or damage caused by the Seller’s negligence);
      2. the Goods will be deemed to have been delivered; and
      3. the Seller may store the Goods until delivery whereupon the Purchaser will be liable for all related costs and expenses (including, without limitation, storage and insurance).
  1. Risk/Title
    1. The Goods are at the risk of the Purchaser from the time of delivery.
    2. Ownership of the Goods shall not pass to the Purchaser until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of:
      1. the Goods; and
      2. all other sums which are or which become due to the Seller from the Purchaser on any account.
    3. Until ownership of the Goods has passed to the Purchaser, the Purchaser must:
      1. hold the Goods on a fiduciary basis as the Seller’s bailee;
      2. store the Goods (at no cost to the Seller) separately from all other goods of the Purchaser or any third party in such a way that they remain readily identifiable as the Seller’s property;
      3. not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
      4. maintain the Goods in satisfactory condition and keep them insured on the Seller’s behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request the Purchaser shall produce the policy of insurance to the Seller; and
      5. hold the proceeds of the insurance referred to in condition 4.3.4 on trust for the Seller and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
    4. The Purchaser may resell the Goods before ownership has passed to it solely on the following conditions:
      1. any sale shall be effected in the ordinary course of the Purchaser’s business at full market value; and
      2. any such sale shall be a sale of the Seller’s property on the Purchaser’s own behalf and the Purchaser shall deal as principal when making such a sale.
    5. The Purchaser’s right to possession of the Goods shall terminate immediately if:
      1. the Purchaser has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed over its undertaking or any part thereof, or a resolution is passed or a petition presented to any court for the winding up of the Purchaser or for the granting of an administration order in respect of the Purchaser, or any proceedings are commenced relating to the insolvency or possible insolvency of the Purchaser; or
      2. the Purchaser suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Seller and the Purchaser, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Purchaser ceases to trade; or
      3. the Purchaser encumbers or in any way charges any of the Goods.
    6. The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.
    7. The Purchaser grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Purchaser’s right to possession has terminated, to recover them.
  1. Price
    1. Unless otherwise agreed by the Seller in writing the price for the Goods shall be the price set out in the Seller’s quotation.
    2. The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to loading, unloading, carriage and insurance all of which amounts the Purchaser will pay in addition when it is due to pay for the Goods.
  1. Payment
    1. Payment of the price for the Goods is due 30 days from when the Goods are delivered or deemed to be delivered.
    2. Time for payment shall be of the essence.
    3. No payment shall be deemed to have been received until the Seller has received cleared funds.
    4. All payments payable to the Seller under the Contract shall become due immedi­ately upon termination of this Contract despite any other provision.
    5. The Purchaser shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Purchaser has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Purchaser.
    6. If the Purchaser fails to pay the Seller any sum due pursuant to the Contract the Purchaser will be liable to pay interest to the Seller on such sum from the due date for payment at the annual rate of 8% above the base lending rate from time to time of Barclays Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment.
  1. Drawings and confidentiality
    1. Any proposal, including any drawings and/or manuals submitted pertaining thereto is the property of the Seller and it contains confidential information and is presented to Purchaser on condition that it and its representative have, by receiving it, agreed not to reproduce or copy it, in whole or in part, or to furnish information from it to others, or to make any use of it that is, or may be, injurious to the Seller, and Purchaser agrees to return them upon request.
    2. Proposal pages, catalogue illustrations and preliminary drawings are submitted only to show general style, arrangement and approximate dimensions.  The Seller, reserves the right to make such changes of design, construction or arrangement, as it deems necessary to represent improvement in practice over the specifications contained herein.  Purchaser is to provide the drawings of all foundations, concrete construction and reinforcement and required housings, based upon the Seller, equipment drawing. All drawing issued by us remain our property and may not be used or copied by third parties for any purpose. The customer may use issued drawings for reference only.
  1. The information contained in any quotation or proposal, is confidential and the Purchaser agrees to keep all information contained in any quotation or proposal confidential and not to disclose to any third party without prior written approval from the Seller. This includes designs, process technology, and drawings, cost information and all data that the Seller has generated in response to any enquiry.
  1. Erection
    1. Our price, for UK contracts only, unless stated otherwise in the tender document, includes for supervision of start-up of plant upon completion of erection for a period of one day beyond which the Seller will charge for these services at an agreed rate.
    2. The Purchaser shall bear full responsibility for our personnel on site including the briefing of personnel on all hazards that they may be exposed to while undertaking necessary works and supply free issue of necessary safety equipment that may be required.  The Purchaser accepts all liability for third party insurance that may be incurred while undertaking such works and including such insurance for crane hire.
    3. The Purchaser shall be fully responsible for the issue to our personnel of all rules and regulations applicable to the site and factory location, such rules and regulations must be issued prior to the start of installation and in good time for consumption. The Purchaser is further responsible for the enforcement of such local regulations and the statutory regulations as stipulated by the Health and Safety Executive, Environmental Agency or any other such Government body that may be applicable to the Purchaser’s facility.
    4. The Seller must be allowed free access to site at all times for personnel and/or plant up to the time of takeover of the plant by the client or the final payment, whichever is the later.
    5. The Seller reserves the right at their discretion to conduct performance tests and obtain records including photographs of as installed plant supplied by the Seller.
  1. The Seller undertakes not to disclose any information so obtained to any third party not to publish any photographs without written permission from the Purchaser.
  1. Temporary power, lighting and telephone facilities must be provided by the Purchaser as required by the Seller during the execution of site operations.
  1. Permits and Approval of Plans and Specifications

Where statutory regulations require permits to install equipment covered by this proposal, or the approval of the plans and specifications for installation, Purchaser assumes the responsibility for securing the approval from the proper authorities and for any required fees. If any changes are required in the equipment covered by this proposal to meet approval of said authorities purchase shall inform the Seller, of such changes and shall reimburse the Seller, for any out-of-pocket expenses incurred by them for inspection by regulatory officials.

  1. Transportation

Where transportation is prepaid, equipment will be shipped to an unloading point designated by the Purchaser, unloading, hauling to the erection site from the unloading point and further handling shall be at the Purchaser’s risk and expense independent of any erection services that may be requested by the Purchaser. Time for delivery and installation at site shall not be of the essence of the contract and the Seller shall not be liable for any delays in delivery and or installation on site.

  1. Insurance

Purchaser accepts full responsibility for the safeguarding of said equipment until it is paid for in full.  Until the contract price is paid in full, Purchaser shall provide and maintain insurance to the total value of the equipment delivered hereunder against risks of theft, damage, fire, explosion, flood, earthquake, windstorm, cyclone, tornado, hurricane, riot, strike and civil commotion in the names of Purchaser and the Seller being the beneficiaries to such insurance jointly as the interested parties.

  1. Liability
    1. the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Purchaser in respect of:
      1. any breach of these conditions; and
      2. any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
      3. All warranties, conditions and other terms implied by statute or common law (save for       the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
      4. Nothing in these conditions excludes or limits the liability of the Seller for death or      personal injury caused by the Seller’s negligence or fraudulent misrepresentation.
      5. Subject to conditions 13.2 and 13.3:
      6. the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the contract price; and
      7. the Seller shall not be liable to the Purchaser for any pure economic loss, loss of profit, loss of business, depletion of goodwill or otherwise, or for any indirect or consequential losses, or any claims for indirect or consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract;
      8.   the Seller shall not be liable for loss or damage of any kind resulting from:
      9. Purchaser failing to supply necessary technical data, as required;
      10. Purchaser failing to supply the apparatus, material and services as required.
      11. Any changes in designs or specifications made subsequent to acceptance of any proposal.
      12. Inability of the Seller, to deliver on account of fire, flood, accidents epidemics, quarantine restrictions, Force Majeur of any other cause beyond its control.
      13. Failure of suppliers to furnish purchased material or auxiliary equipment within scheduled dates.
      14. By any other reason beyond the Seller’s control.
  2. Arbitration

If at any time any question, dispute, or difference shall arise between the Seller and the Purchaser, the Seller can as soon as reasonably practical, advise the other party, in writing of the existence of such question, dispute or difference specifying its nature and the point of issue and at the same time shall be referred to the arbitration of a person to be agreed upon, or failing such agreement, to some person appointed on the application of either parties by the President for the time being of the Institute of Mechanical Engineers, the decision being binding on both parties.  Performance of the contract shall continue during arbitration proceedings unless the Purchaser shall order suspension of the whole or part of the works and if any such suspension shall be ordered the reasonable expenses of the Seller, occasional by such suspension shall be added to the contract price.

  1. Equipment Warranty and Limitation of Liability
    1. The Seller warrants to the original Purchaser that the equipment will for a period of 12 months perform in accordance with the duty described in any tender and for a period of 12 months will be free from defects in material and workmanship under normal use and service.  The Seller, warrants at it’s option to replace and/or repair any equipment or components which the Seller’s examination shall disclose to be defective in material or workmanship within two years from date of delivery provided:
      1. Purchaser operates equipment in accordance with generally accepted practice and for the purpose for which sold and in accordance with the conditions of service, if any, herein specified.
      2. Purchaser notifies the Seller, in writing of the exact defect within three months after receipt on site.
      3. Purchaser preserves defective equipment for inspection by the Seller, and returns defective equipment freight collect as directed by the Seller, if required.
      4. Purchaser does not alter or attempt to repair any equipment without written authorisation from the Seller. The Seller, obligation under this warranty shall be to repair either in site or in factory, as the Seller may decide, and in no event shall the Seller be liable for consequential or special damages, transportation, installation, adjustments, or other expenses which may arise in connection with such equipment or components.
    2. The Seller does not guarantee equipment if used for other than the purpose set forth in any proposal.  The Seller warrants components or equipment, only to the extent of the original manufacturer’s warranty. No warranties, statutory, express, or implied (except as title) other than those expressly set forth above, shall apply to equipment and components sold by us, an no waiver, alterations, or modification of the foregoing warranties shall be valid, unless made in writing and signed by an executive officer of the Seller.
    3. The Seller neither assumes or authorises any person to assume on its behalf any obligation or liability in connection with this transaction with respect to the equipment of components which have been subject to any accident, alteration, abuse or misuse.  Any claim for equipment replacement must be taken up with the Seller in writing.
  1. Termination, Cancellation or Suspension of Order
    1. Suspension can only be instituted upon written request by Purchaser and written acknowledgement by Seller, at which time the cost, including overhead, of all work done to the date of suspension, both on equipment and installation, is payable to the Seller immediately.  The Purchaser agrees that when the contract is resumed, the Seller will add any increased costs in labour or materials, to the prime contract.
    2. Termination or cancellation of order can only be instituted upon written request by Purchaser and written acknowledgement by the Seller at which time the Seller will estimate the percentage of completion of the order, including installation, purchased items, cancellation costs to the Seller from suppliers, etc the Purchaser’s obligation will be to pay the Seller cancellation charges of 25% of the contract price or the sales cost of the percentage of completion, whichever is the greater, plus any cancellation charges which may be charged back by other manufacturers to the Seller on items already ordered for the contract, but not delivered at the time of termination.  If the money already paid to the Seller by Purchaser does not cover the foregoing, Purchaser will be liable for any difference, which shall be immediately payable.
  1. Returned Material

In no case are materials or equipment to be returned without first obtaining the Seller’s written permission. Materials and/or equipment accepted by the Seller for credit are subject to an agreed charge (the minimum charge will be 10%) plus all transportation charges. Materials or equipment built to order are not subject to return for credit under any circumstances.  Any materials or equipment authorised for return must be securely packed to reach the Seller without damage.

  1. Back Charges and Allowance

The Seller shall not be called upon to make any allowances for material, labour, repairs or alterations made for its account by Purchaser unless the Seller authorises in writing in advance any such allowance.

  1. Repossession

Should the Purchaser fail to comply with the terms and conditions set forth herein, the Seller may, without notice or demand, by process of law or otherwise take possession of all or any of the equipment wherever located and retain all monies thereto paid as compensation for the reasonable use of such equipment. Any legal fees arising from defending repossession of plant would be reclaimable from the Purchaser.

  1. Waiver, Alteration or Modification

No waiver, alteration or modification of the foregoing terms and conditions, except as noted in the text of this proposal, shall be valid unless made in writing and signed by an authorised official of the Seller.

  1. Patents

The Seller shall hold Purchaser harmless against any claim that the Seller, equipment infringes United Kingdom apparatus patents, but the Seller, shall not be responsible for claims for patent infringements arising from the Purchaser’s materials or processes.

  1. Assignment
    1. The Purchaser shall not be entitled to assign the Contract or any part of it without the prior written consent of the Seller.
    2. The Seller may assign the Contract or any part of it to any person, firm or company.
  1. Force majeure

The Seller reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Purchaser (without liability to the Purchaser) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Seller including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials Provided that, if the event in question continues for a continuous period in excess of 180 days, the Purchaser shall be entitled to give notice in writing to the Seller to terminate the Contract.

  1. General
    1. Each right or remedy of the Seller under the Contract is without prejudice to any other right or remedy of the Seller whether under the Contract or not.
    2. If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
    3. Failure or delay by the Seller in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
    4. Any waiver by the Seller of any breach of, or any default under, any provision of the Contract by the Purchaser will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
    5. The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
    6. The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.
  1. Communications
    1. All communications between the parties about this Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission:
      1. (in case of communications to the Seller) to its registered office or such changed address as shall be notified to the Purchaser by the Seller; or
      2. (in the case of the communications to the Purchaser) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Purchaser set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Purchaser.
    2. Communications shall be deemed to have been received:
      1. if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
      2. if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
      3. if delivered by hand, on the day of delivery;
      4. if sent by facsimile transmission on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.