Terms & Conditions

Terms and conditions of sale                      Ekollon Limited.

 

  1.  Interpretation.
    1.  In the terms and conditions of sale the following words shall where the context permits  

have the meanings assigned to them:

“Ekollon” – Ekollon Limited, Unit 28 Highfield Business Park, Tewkesbury Road, Deerhurst, Gloucester,

GL19 4BP, Registered in England No. 7888436.

“The Customer” – The person, firm or company purchasing the Goods from Ekollon.

“The Goods” – The goods described in the order or acknowledgement of order and including where applicable an instalment of the Goods and any part of them which Ekollon is to supply to the Customer in accordance with these Conditions.

“The Contract” – Any contract between the parties for the purchase and sale of the Goods.

“The Conditions” – The standard terms and conditions of sale set out below and (unless the context otherwise requires) including any special terms and conditions agreed in writing between Ekollon and the Customer.

“The Order”- The order placed by the customer with Ekollon for the supply of goods.

 

  1.  Formation of Contract.
    1.  Unless otherwise agreed between the parties in writing (and subject to condition 2.3) all orders are deemed to have been made by the Customer and are accepted by Ekollon subject to these Conditions which will govern the Contract to the exclusion of any other Terms and Conditions.
    2. These Conditions shall not be capable of being varied, supplemented, qualified or interpreted by reference to any previous course of dealings.
    3. No employee or agent of Ekollon has power to vary or waive these Conditions except a director doing so in writing.
    4. Ekollon shall not be liable for or as a consequence of any statement or representation (whether written or oral) made by any third party (including any agent, sub-contractor or employee of Ekollon), unless confirmed in writing and signed by a director of Ekollon.
    5. Ekollon may from time to time make changes in the specification of the Goods or of their Services which are required to comply with any applicable safety or statutory requirements which do not materially affect quality or fitness for purpose. No notice of such changes need be given.

 

  1. Prices.
    1. Where prices have not been quoted the prices applicable shall be Ekollon’s prices ruling at the date of delivery.
    2. Prices are exclusive of Value Added Tax and similar taxes and of freight, packaging, insurance and delivery charges which shall be payable in addition and appear as separate items on Ekollon’s invoice to the customer (unless otherwise agreed).

 

  1. Delivery.
    1. Delivery of the Goods shall be made by the Customer collecting the Goods at Ekollon’s premises at Beckford at any time after Ekollon has notified the Customer that the Goods are ready for collection or, if some other place for delivery is agreed by Ekollon, by Ekollon delivering to that place.

 

  1. Any dates quoted for the delivery of the Goods are approximate only and Ekollon 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 Ekollon in writing. The Goods may be delivered in advance of the quoted delivery date upon giving reasonable notice to the Customer.
  2. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by Ekollon to deliver any one or more instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
  3. If Ekollon fails to deliver the Goods for any reason other than any cause beyond its reasonable control or the Customers fault, and Ekollon is accordingly liable to the Customer, Ekollon’s liability shall be limited to the excess (if any) over the price of the goods of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered.
  4. If the Customer fails to take delivery of the Goods or fails to give Ekollon adequate delivery instructions at any time stated for delivery (otherwise than by reason of any cause beyond beyond the Customer’s reasonable control or by reason of Ekollon’s fault) then, without prejudice to any right or remedy available to Ekollon, Ekollon may:
    1. Store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
    2. Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract (if the Customer has paid such price) or charge the Customer for any shortfall below the price under the Contract.

 

  1. Terms of Payment.
    1. Unless otherwise agreed in writing Ekollon shall be entitled to invoice the Customer for the price of the Goods before, on or at any time after delivery of the Goods.
    2. The Customer shall pay the price of the Goods (less any discount to which the Customer is entitled but without any other deduction) within thirty days of the date of Ekollon’s invoice, which shall be the due date for payment, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Customer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
    3. If the Customer fails to make payment on the due date then without prejudice to any other right or remedy available to Ekollon, Ekollon shall be entitled to:-
      1. Cancel the Contract or suspends any further deliveries
      2. Appropriate any payment made by the customer to such of the Goods (or the Goods supplied under any other Contract between Ekollon and the Customer ) as Ekollon may think fit (notwithstanding any purported appropriation by the Customer); and
      3. Charge the customer interest (both before and after any judgement) on the amount unpaid, at the rate of 5% above the L.C.B Bank base rate from time to time until payment in full (including interest) is made (a part of a month being treated as a whole month for the purposes of calculating interest).
    4. Ekollon is entitled to maintain an action for the price of the Goods notwithstanding that property in the Goods has not passed to the Customer.

 

 

 

 

 

 

  1. Risk and Property.
    1. Risk of damage to or loss of the Goods to be delivered at Ekollon’s premises, at the time when Ekollon notifies the Customer that the Goods are available for collection; or

6.1.2   in the case of Goods to be delivered otherwise than at Ekollon’s premises, at the time of

delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when Ekollon has tendered delivery of the Goods.

  1. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Customer until Ekollon has received payment in full of the price of the Goods and all other Goods agreed to be sold by Ekollon to the Customer for which payment is then due.
  2. Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as Ekollon’s property.
  3. Until such time as the property in the Goods passes to the Customer, the Customer shall be entitled to resell or use the Goods in the ordinary course of his business, but shall account to Ekollon for the proceeds of sale of the Goods and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties.
  4. Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold) Ekollon shall be entitled at any time to require the Customer to deliver up the Goods to Ekollon and if the Customer fails to do so immediately to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
  5. The Customer shall not be entitled to pledge or in any way charge by way of security for indebtedness any of the Goods which remain Ekollon’s property but if the Customer does so all monies owing by the Customer to Ekollon shall (without prejudice to any other right or remedy of Ekollon) immediately become due and payable.
  6. No Goods delivered to the Customer which are in accordance with the Contract will be accepted for return without the prior written approval of Ekollon on terms to be determined at the absolute discretion of Ekollon.

 

  1. Warranties and Liability.
    1. Ekollon warrants that the Goods will at the time of delivery correspond to the description given by Ekollon (changes in specification pursuant to clause 2.5 excepted). All other warranties, conditions or terms relating to fitness for purpose, merchantability or condition of the Goods and whether implied by statute or common law or otherwise are excluded to the extent that this is reasonable and permissible in law and Ekollon shall not (save as provided in clause 7.7 below) have any liability to the Client in contract tort or for breach of statutory duty for loss or damage of any type whatsoever and whether direct, indirect, consequential or otherwise.
    2. Subject to the conditions set out below Ekollon warrants that the Goods will be free from defects in material and workmanship for a period of twelve months from date of their initial use or fifteen months from delivery, whichever is the first to expire.
    3. The above warranty is given by Ekollon subject to the following conditions:
      1. Ekollon shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to maintain and/or service the Goods and/or otherwise to follow Ekollon’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without Ekollon’s approval.
      2. Ekollon shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
      3. The above warranty does not extend to parts, materials or equipment not manufactured by Ekollon, in respect of which the Customer shall only be entitled to benefit of any such warranty or guarantee as is given by the manufacturer to Ekollon.

 

  1. Subject as expressly provided in these conditions and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent that is reasonable and permitted by law.
  2. Where goods are sold under a consumer transaction as defined by the Consumer Transactions (Restrictions on Statements) Order 1976 the statutory rights of the Customer are not affected by these Conditions.
  3. Any claim by the Customer which is based on any defect in the quality or condition of the Goods or their failure to correspond with the specification shall (whether or not delivery is refused by the Customer) be notified to Ekollon within seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Customer does not notify Ekollon accordingly, the Customer shall not be entitled to reject the Goods and Ekollon shall have no liability for such defect or failure and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
  4. Where any valid claim based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to Ekollon in accordance with these Conditions, Ekollon shall be entitled at its sole discretion either to replace the Goods (or the part in question) free of charge or, to refund the customer the price of the Goods (or a proportionate part of the price), but Ekollon shall have no further liability to the customer.
  5. The Customer agrees to indemnify Ekollon against any damages, losses, costs, claims or expenses incurred by Ekollon in respect of any liability of Ekollon towards a third party arising out of or in connection with any of the Goods or their use or operation and whether arising by reason of negligence of Ekollon or otherwise insofar as liability arises as a result of any dealing with the Goods otherwise than as expressly instructed or as would reasonably be expected in the normal course of business.
  6. Except in the case of death or personal injury caused by Ekollon’s negligence and, so far as is reasonable and permissible in law, Ekollon shall not be liable to the Customer by reason of any representation or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of Ekollon, its employees or agents or otherwise), which arises out of or in connection with the supply of the Goods or their use or sale by the Customer, except as expressly provided in these Conditions.
    1. Ekollon shall not be liable to the customer or be deemed to be in breach of the contract by reason of any delay in performing, or any failure to perform any of Ekollon’s obligations in relation to the Goods, if the delay or failure was wholly or mainly due to any act or default of the Customer or to any cause beyond Ekollon’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond Ekollon’s control:

7.10.1   Act of God, explosion, flood, tempest, fire or accident;

7.10.2   War or threat of war, sabotage, insurrection, civil disturbance or requisition;

7.10.3   Acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of    any governmental, parliamentary or local authority;

 

7.10.4 Import or export regulations or embargoes;

7.10.5 Strikes, lock-outs or other industrial actions or trade disputes (whether involving       employees of the Seller or of a third party;

7.10.6 Difficulties in obtaining raw materials, labour, fuel, parts or machinery;

7.10.7 Power failure or breakdown in machinery.

 

  1. Insolvency of Customer.
    1. This clause applies if:
      1. the customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
      2. an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer: or
      3. the customer ceases, threatens to cease, to carry on business: or
      4. Ekollon reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.

 

  1. If this clause applies then, without prejudice to any other right or remedy available to Ekollon, Ekollon shall be entitled to cancel the Contract or suspends any further deliveries under the Contract without any liability to the Customer and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding and previous agreement or arrangement to the contrary.

 

  1. Export.
    1. In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as are in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
    2. Where the Goods are supplied for export from the United Kingdom, the provisions of this Condition 9 shall (subject to any special terms agreed in writing between the Customer and Ekollon) apply notwithstanding any other provision of these Conditions.
    3. The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
    4. Unless otherwise agreed in writing between the Customer and Ekollon, the Goods shall be delivered ex-works and Ekollon shall be under no obligation to give notice under Section 32(3) of the Sale of Goods Act 1979.
    5. The Buyer shall be responsible for arranging for testing and inspection of the Goods at Ekollon’s premises before shipment. Ekollon shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
    6. Payment of all accounts due to Ekollon shall be made by irrevocable letter of credit opened by the Customer in favour of Ekollon and confirmed by a bank in England acceptable to Ekollon or, if Ekollon has agreed in writing on or before acceptance of the Customer’s order to waive this requirement, by acceptance by the Customer and delivery to Ekollon of a bill of exchange drawn on the Customer payable sixty days after sight to the order of Ekollon at such branch of Barclays Bank as may be specified in the bill of exchange.

 

 

  1. Cancellation.

 

  1.  Ekollon shall not be liable for any loss or damage whatever arising from such cancellation.

 

  1. General.

 

  1. Any notice given under this Contract must be in writing addressed to the recipient at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice and such notice shall be deemed to be received on the day of personal delivery, two days from the date of posting within the United Kingdom or else in due course to the post, or within twenty four hours of facsimile transmission being sent.
  2. The Contract shall be deemed to have been made at Beckford, England. English Law is the proper law of the Contract and all disputes arising in connection with it are subject to the non-exclusive jurisdiction of the English Courts.
  3. No waiver by Ekollon of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any provision of the Contract.
  4. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected hereby.

 

Nothing in these conditions affects the statutory rights of the consumer.

 

 

Terms and Conditions © November 2016.

Copyright © Ekollon Limited March 2013

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