OTAQ agrees to sell and the Buyer agrees to buy the Goods on the terms and conditions set out below. These Conditions set out the entire agreement between the parties in respect of the supply of the Goods. The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions. OTAQ enters into this agreement on behalf of itself and any OTAQ Group Company involved in the supply.
1. Definitions and interpretation
1.1 Definitions
“Contract” means the agreement between OTAQ and the Buyer for the supply of Goods.
“Buyer” means the party who accepts a quotation of OTAQ for the sale of the Goods or whose order for the Goods is accepted by OTAQ.
“Delivery” means OTAQ making the Goods available for collection from OTAQ’s premises or, if some other place for delivery is agreed in writing by OTAQ, by OTAQ delivering the Goods to that place and includes if the Buyer fails to take delivery of the Goods in accordance with these Conditions, at the time when OTAQ has tendered delivery.
“Goods” means the goods (including any instalment of the goods or any parts for them) which OTAQ is to supply in accordance with these Conditions.
“OTAQ” means OTAQ Group Ltd., a company incorporated in England with Company number 05471794 whose registered office is at 8-3 -4 Harpers Mill South Road, White Cross, Lancaster, England, LA1 4XF.
1.2 Interpretation
(a) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(b) A reference to any statute, enactment, order, regulation or other similar instrument shall be construed as reference to the statute, enactment, order regulation or instrument as amended from time to time.
(c) Headings are included in these Conditions for ease of reference only and shall not affect the interpretation or construction of any of the terms and conditions herein.
2. Basis of Sale
2.1 OTAQ shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of OTAQ which is accepted by the Buyer, or any written order of the Buyer which is accepted in writing by OTAQ, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made by the Buyer.
2.2 The provisions of Condition 2.1 shall also apply where OTAQ commences work on an order on the basis of communications to do so by the Customer, regardless of whether the Customer has formally accepted these Conditions.
2.3 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and OTAQ.
3. Orders and Specifications
3.1 Any advice, suggestion or recommendation given by OTAQ or its employees or agents to the Buyer or its employees or agents as to the use of the Goods which is not confirmed in writing by OTAQ is followed or acted upon entirely at the Buyer’s own risk, and accordingly OTAQ shall not (other than for fraud or fraudulent misrepresentation) be liable for any such advice suggestion or recommendation which is not so confirmed.
3.2 The quantity, quality and description of and any specification for the Goods shall be those set out in OTAQ’s quotation (if accepted by the Buyer).
3.3 OTAQ’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by an officer of OTAQ in writing. In entering into the Contract, the Buyer acknowledges that it does not rely on any such representations, which are not so confirmed, but nothing in these Conditions affect the liability of either party for fraudulent misrepresentation.
3.4 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by OTAQ shall be subject to correction without any liability on the part of OTAQ.
3.5 The Buyer shall be responsible to OTAQ for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving OTAQ any necessary information relating to the Goods within a sufficient time to enable OTAQ to perform the Contract in accordance with its terms.
3.6 In completing Goods to the Buyer’s specification, OTAQ does not warrant the Buyer’s specification is correct. Whilst OTAQ will use reasonable skill and care in completing Goods to the Buyer’s specification, OTAQ shall not be liable for any outcome or liability resulting from OTAQ following the Buyer’s specification.
3.7 If the Goods are to be manufactured or any process is to be applied to the Goods by OTAQ in accordance with a specification submitted by the Buyer, the Buyer shall indemnify OTAQ against all loss, damages, costs and expenses awarded against or incurred by OTAQ in connection with or paid or agreed to be paid by OTAQ in settlement of any claim for infringement of any patent, copyright, design trademark or other industrial or intellectual property rights of any other person which result from OTAQ’s use of the Buyer’s specification.
3.8 OTAQ reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to OTAQ’s specification, which do not materially affect their quality or performance.
3.9 OTAQ reserves the right to make any changes in the specification of the Goods, which do not materially affect their quality or performance.
3.10 The price of the Goods shall be OTAQ’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in OTAQ’s published price list current at the date of acceptance of the order. All prices quoted are valid for thirty (30) days only or until earlier acceptance by the Buyer, after which time they may be altered by OTAQ without notice to the Buyer.
3.11 No order which has been accepted by OTAQ may be cancelled by the Buyer except with the agreement in writing of OTAQ and on terms that the Buyer shall indemnify OTAQ in full against all loss (including loss of profit), liability, costs (including the cost of all labour), damages, charges and expenses incurred by OTAQ as a result of cancellation.
3.12 Where OTAQ gives a quotation based upon information supplied by the Buyer, the Buyer is responsible for its accuracy and any increased costs of supply resulting from any inaccuracy are the Buyer’s responsibility for which the Buyer shall be liable for on demand.
3.13 Return of any Goods ordered is subject to the prior written agreement of OTAQ, plus (other than for a valid warranty defect) a 20% re-stocking fee and minimum credit value of £50. The Buyer is responsible for organising the return of the Goods to OTAQ and paying for delivery to OTAQ including insurance. All Goods returned must be in their original state and packaging.
3.14 All prices quoted are subject to VAT which shall, where applicable, be payable in addition. The Buyer shall, in addition, be responsible for all taxes levies, export and import duties applicable.
3.15 OTAQ reserves the right, by giving written notice to the Buyer at any time before Delivery, to increase the price of the Goods to reflect any increase in the cost to OTAQ which is due to any factor beyond the reasonable control of OTAQ including any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials, fuel and utilities, any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give OTAQ adequate information or instructions.
3.16 Where the Goods are to be delivered in instalments, each delivery or performance shall constitute a separate Contract and failure by OTAQ to deliver or perform any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
4. Terms of payment
4.1 OTAQ reserves the right to require a deposit from the Buyer and/or for the Buyer or related third party to enter into a form of guarantee with OTAQ.
4.2 Subject to Condition 4.1, or where Goods are made to Buyer specification, and any special terms agreed in writing between the Buyer and OTAQ, OTAQ shall be entitled to invoice the Buyer for the price of the Goods on or at any time after Delivery of the Goods, which includes where the Buyer wrongfully fails to take delivery of the Goods, after OTAQ has notified the Buyer that the Goods are ready for collection or (as the case may be) OTAQ has tendered delivery of the Goods.
4.3 All prices shall, unless otherwise agreed in writing, be charged in UK pounds Sterling and all payments are to be made in UK pounds Sterling. Where OTAQ agrees in writing to invoice in any other currency, then payment must be received by OTAQ in that currency. The Buyer shall be liable to OTAQ for any conversion or other related costs where currency is paid or received in a currency not so agreed.
4.4 The Buyer shall pay the price of the Goods within 30 days of the date of OTAQ’s invoice (without any deduction, counter claim or set off). OTAQ shall be entitled to recover the price notwithstanding that delivery of the Goods may not have taken place. The time of payment for the Goods shall be of the essence of the Contract.
4.5 OTAQ reserves the right to stipulate that immediate payment in full be made by the Buyer before collection or delivery of the Goods.
4.6 Where a currency other than UK pounds Sterling is agreed and on the date that payment is received by OTAQ, the rate of the UK pound has fallen by five (5%) or more percentage points against the currency in which payment is received, (as measured by the Barclays Bank Plc published exchange rate applied (i) on the date of OTAQ’s written quotation, or the date on which OTAQ accepted the Buyer’s purchase order through and order confirmation; and (ii) with the rate applied by Barclays Bank Plc against on the date and at the time of receipt of payment (and where received on more than one date on such dates and payments respectively). Where any such shortfall applies, OTAQ shall within a reasonable period notify the Buyer in writing of the amount of the shortfall and raise a further invoice in respect of the shortfall balance. Any such invoice shall be payable by the Buyer within ten (10) days of the issue of the further invoice.
4.7 If the Buyer fails to make any payment on the due date, then OTAQ may:
(a) cancel the Contract or suspend any further deliveries to the Buyer under any other Contract;
(b) appropriate any payment made by the Buyer (including any deposit) to such of the Goods supplied under any other Contract between the Buyer and OTAQ as OTAQ may think fit;
(c) enforce the terms of any guarantee with the Buyer or associated third party;
(d) charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of four (4) per cent per annum above Barclays Bank Plc base rate from time to time (compounded monthly), until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
4.8 OTAQ may withdraw credit facilities at any time and without notice.
4.9 Where the Goods are returned or collected and are found to be damaged, then the Buyer shall, without affecting any other right or remedy of OTAQ, be responsible for price of the Goods.
4.10 The Buyer shall be liable for and agrees to pay all costs (including export and import costs); taxes (including withholding tax), levies, and duties assessed by any government or body against the Goods delivery and return.
4.11 The provisions contained in this Condition 4 shall be in addition to and shall not affect any other right or remedy of OTAQ, otherwise arising.
5. Delivery
5.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at OTAQ’s premises at any time after OTAQ has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by OTAQ, by OTAQ delivering the Goods to that place.
5.2 Any dates quoted for delivery of the Goods are approximate only and OTAQ shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by OTAQ in writing. The Goods may be delivered by OTAQ in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
5.3 If OTAQ fails to deliver the Goods for any reason other than any cause beyond OTAQ’s reasonable control or the Buyer’s fault, and OTAQ is accordingly liable to the Buyer, OTAQ’s liability shall be limited as per Condition 8 (Limitation of liability)
5.4 If the Buyer fails to take delivery of the Goods or fails to give OTAQ adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of OTAQ’s fault) then, without prejudice to any other right or remedy available to OTAQ, OTAQ may:
(a) store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
(b) sell the Goods at the best price readily obtainable and (after deducting all reasonable restocking, storage and selling expenses) charge the Buyer for any shortfall below the price under the Contract.
6. Title and risk
6.1 Risk in the Goods shall pass to the Buyer on Delivery.
6.2 Notwithstanding Delivery and the passing of risk in the Goods, title in the Goods shall not pass to the Buyer until OTAQ has received payment in full for the Goods and all other Goods OTAQ has supplied to the Buyer.
6.3 Until title to the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as OTAQ’s bailee;
(b) store the Goods separately from all other goods held by the Buyer so that the remain readily identifiable as OTAQ’s property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) give OTAQ such information relating to the Goods as OTAQ may require from time to time
but the Buyer may resell or use the Goods in the ordinary course of its business.
6.4 If before title to the Goods passes to the Buyer the Buyer becomes subject to any insolvency proceedings or OTAQ reasonably believes that any such event is about to happen and notifies the Buyer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy OTAQ may have, OTAQ may at any time require the Buyer to deliver up the Goods and, if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Goods are stored in order to recover them. This right shall survive termination of the Contract.
7. Quality
7.1 OTAQ warrants that (subject these Conditions) upon Delivery the Goods will correspond with their specification and will be free from defects in material and workmanship for a period of six (6) months.
7.2 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall be notified to OTAQ:
(a) for damage reasonably noticeable on inspection at the time of delivery, within two (2) days from the date of Delivery, providing more detailed documentary and photographic evidence within 4 days of Delivery; or
(b) where the damage or defect was not apparent on reasonable inspection, within a reasonable time after discovery (being no later than four (4) days) of the damage or defect or the time when the damage or defect ought reasonably to have been detected.
7.3 The Buyer shall notify the courier and include a note to that affect on the courier’s copy of the delivery docket of any damage which on Delivery, is apparent on reasonable inspection.
7.4 OTAQ shall not be liable for a breach of any of the warranties in Condition 7.1 unless:
(a) the Buyer gives written notice of the defect to OTAQ pursuant to Condition ; and
(b) OTAQ is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by OTAQ) returns such Goods to OTAQ’s place of business (or where fitted by OTAQ, allows OTAQ an opportunity to inspect on site) for the examination to take place there.
7.5 OTAQ shall not be liable to the Buyer if:
(a) the Buyer makes any further use of the Goods after the Buyer has become aware or ought reasonably to have become aware of such damage or defect; or
(b) the defect arises because the Buyer failed to follow OTAQ’s or manufacturer’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
(c) the Buyer alters or repairs such Goods without the prior written consent of OTAQ;
(d) the Buyer fails to provide reasonable evidence (including photographic) of the damage or defect in the Goods; or
(e) the Buyer otherwise fails to allow OTAQ reasonable opportunity to inspect the Goods on reasonable notice.
7.6 If any of the Goods do not conform with any of the warranties in Condition 7.1, OTAQ shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the proportionate Contract rate provided that, if OTAQ so requests, the Buyer shall, return the Goods or the part of such Goods which is defective to OTAQ (or where fitted by OTAQ, allows OTAQ an opportunity to remove such Goods from site).
7.7 If OTAQ complies with condition 7.8, it shall have no further liability for a breach of any of the warranties in condition 7.1 in respect of such Goods.
7.8 Any Goods replaced will belong to OTAQ.
7.9 Subject as expressly provided in these Conditions, and except where the Goods are sold under a consumer sale (as defined by the Sale of Goods Act 1979), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8. Limitation of Liability
8.1 These Conditions set out the entire liability of OTAQ.
8.2 Nothing in these Conditions limits any liability which cannot legally be limited, including liability for death or personal injury caused by negligence, or fraud or fraudulent misrepresentation.
8.3 OTAQ shall not be liable to the Buyer for any delay where such delay arises from the Buyer’s failure to comply with the terms of this agreement.
8.4 Where a valid claim in respect of any provision by OTAQ of the Goods which is based on a defect in the quality or condition of the Goods, failure to provide the Goods (on time or at all), or their failure to meet specification is notified to OTAQ in accordance with these Conditions, OTAQ may replace the defective Goods (or the part in question) free of charge, or at OTAQ’s sole discretion, refund to the Buyer the price paid for the Goods (or a proportionate part of the Charges), in which case OTAQ shall have no further liability to the Buyer.
8.5 OTAQ shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the agreement, for any direct loss suffered or incurred by the Buyer which arises out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all).
8.6 Whether arising in contract, tort breach of statutory duty or otherwise, OTAQ shall not be liable to the Buyer for any indirect or consequential loss however suffered or incurred including:
(a) loss of profit;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use;
(f) corruption or loss of software, data or information; and
(g) loss of or damage to goodwill
(h) special loss or damage.
8.7 OTAQ shall not be liable to the Buyer by reason of any delay in performing, or any failure to perform any of OTAQ’s obligations in relation to the Goods, if
(a) the delay or failure was due to any cause beyond OTAQ’s reasonable control; or
(b) the Buyer has failed to make any payment due hereunder, when such payment was due.
8.8 Subject to Condition 8.2 (Liabilities which cannot legally be limited), OTAQ’s total liability to the Buyer, whether in contract, tort or breach of statutory duty shall be limited to 120% of the price payable under the Contract which gave rise to the claim.
8.9 Unless the Buyer notifies OTAQ that it intends to make a claim in respect of an event within twelve months of the event, or if later, the date when the event would reasonably have come to light, OTAQ shall have no liability for that event.
9. Termination
9.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any term of this agreement and (if such a breach is remediable) fails to remedy that breach within ten days of that party being notified in writing to do so;
(b) the other party 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), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, 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;
(c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
(d) the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;
(e) the other party is unable to meet its debts as they fall due; or
(f) the other party suffers any event in any other state, analogous to the events specified in Conditions 9.1(b) to 9.1(e).
9.2 Without affecting any other right or remedy available to it, OTAQ may terminate this agreement with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under a Contract on the due date for payment.
10. Force Majeure
10.1 OTAQ shall not be liable for any delay or failure to perform its obligations if such failure or delay is due to Force Majeure. 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.
10.2 For the purpose of this agreement, “Force Majeure” shall include any act, omission, cause or circumstance beyond the reasonable control of a OTAQ, and shall include war, rebellion, civil commotion, strikes, lock-outs and industrial disputes, fires, explosion, earthquake, act of God, flood, drought, or other act or order of any government department, council or other constituted body.
11. General
11.1 Entire Agreement
(a) This agreement constitutes the entire agreement between the parties as to the subject matter and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter hereof and supersedes all previous agreements with respect thereto.
(b) Each party hereby acknowledges that it has not entered into this agreement in reliance upon any representation made by the other party but not embodied herein.
(c) 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 a Contract.
11.2 Assignment and other dealings
(a) OTAQ 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 this agreement.
(b) The Buyer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any Goods or all of its rights or obligations under the agreement.
11.3 Confidentiality.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, Buyers, clients or suppliers of the other party, except as permitted by Condition 11.3(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this Condition 11.3; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
11.4 Variation. No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.5 Waiver. No failure or delay by a party to exercise any right or remedy provided under a 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.
11.6 Severance. If any provision or part-provision of these Conditions 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 agreement. If any provision of these Conditions is deemed deleted under this Condition 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.
11.7 Notices.
(a) Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
(i) 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); or
(ii) sent by international courier or air mail, to its registered office (if a company) or its principal place of business (in any other case) five days after sending or if earlier, on signature of a delivery receipt or at the time the notice is left at the proper address; or
(iii) sent by fax to its main fax number or sent by email, in each instance, to the address specified in the Contract documentation.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, by air mail or international courier on signature of a delivery receipt or at the time the notice is left at the proper address; and
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
(iii) if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this Condition 11.7(b)(iii), business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This Condition does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
11.8 Third party rights.
(a) 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.
11.9 Any member of the OTAQ Group shall be entitled to enforce the terms of this agreement.
11.10 Governing law. The agreement and each Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or their subject matter or formation, shall be governed by and construed in accordance with the laws of England.
11.11 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. The provisions of this Condition 11.11 shall not affect either party’s right to seek interim relief (including injunction and specific performance) from any court of competent jurisdiction.
