Terms & Conditions Of Sale

1. Definitions and Interpretati

1.1 Definitions

“Business Day”

a day other than a Saturday, Sunday or public holiday, when banks in the City of London are open for business

“Buyer”

the person who purchases Goods from STE UK

“Conditions”

the terms and conditions of sale set out in this document as amended from time to time in accordance with clause 11.2

“Contract”

the contract between STE UK and the Buyer for the sale and purchase of the Goods in accordance with these Conditions

“Goods”

the goods (or any part of them) set out in the Order

“Order”

the Buyer’s order for the Goods, as set out in the Buyer’s purchase order form or the Buyer’s written acceptance of STE UK’s quotation, as the case may be

“STE UK”

Stiebel Eltron UK Limited

“UK”

England, Wales, Scotland, Jersey, Guernsey, Isle of Man, Alderney and Sark

“ Warranty Period”

the period referred to in clause 8.2

1.2 Interpretation

(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality)

(b) A reference to a party includes its personal representatives, successors and permitted assigns

(c) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision

(d) Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms

(e) Clause headings shall not affect the interpretation of this document

(f) The term “delivery” shall include Delivery and Collection as such terms are defined in clause 6.2; and

(g) A reference to writing or written includes email but excludes fax.

2. Basis of Contract and Orders

2.1 These Conditions apply to the Contract to the exclusion of any other terms and conditions that the Buyer seeks to impose or incorporate or which are implied by law, trade custom, practice or course of dealing.

2.2 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.

2.3 Any samples, drawings or advertising produced by any member of the STE Group and any illustrations contained in such catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force. Any typographical, clerical or other error or omission in any document or information issued by STE UK or any other member of the STE Group shall be subject to correction without any liability on the part of STE UK or any other member of the STE Group.

2.4 In entering into the Contract, the Buyer acknowledges that it does not rely on any statement, representation, assurance or warranty howsoever made by STE UK or any authorised agent or representative (whether in relation to the application or use of the Goods or otherwise), that is not set out in the Contract.

2.5 A quotation for the Goods given by STE UK shall only be valid for a period of 20 Business Days from its date of issue. It shall not constitute an offer.

2.6 The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions.

2.7 The Order shall only be deemed to be accepted when STE UK issues a written acceptance of the Order, at which point the Contract shall come into existence.

2.8 The Buyer is responsible for ensuring that the terms of the Order (including the quantity, quality and description of the Goods) are complete and accurate and for giving to STE UK any other required information, in sufficient time, to enable STE UK to perform the Contract.

2.9 Without prejudice to clause 3.2, no Order which has been accepted by STE UK may be cancelled or changed by the Buyer except with the agreement in writing of STE UK and on terms that the Buyer shall indemnify STE UK in full against all losses (including any direct, indirect or consequential losses and loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by STE UK as a result of cancellation or change. For the sake of greater clarity, if any change in delivery date(s), quantities or types of Goods is requested by the Buyer and is agreed to by STE UK at its discretion, the Buyer shall be liable for any increase in costs as a result of such agreed change(s).

3. Goods

3.1 Without prejudice to clause 2.3, the Goods are described in the catalogues, brochures and other sales literature produced by STE Group.

3.2 STE UK reserves the right to change any specification of the Goods if required by any applicable statutory or regulatory requirements or which do not materially affect the quality or performance of the Goods. STE UK shall notify the Buyer in the event of such change. If such changes will materially change the nature or quality of the Goods, the Buyer may cancel the Order.

4. Price of the Goods

4.1 The price of the Goods shall be STE UK’s quoted price as set out in the Order or, where no price has been quoted (or a quoted price is no longer valid), the price listed in STE UK’s published price list current at the date of STE UK’s acceptance of the Order.

4.2 STE UK 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 STE UK which is due to:

(a) any delay caused by any instructions of the Buyer or failure of the Buyer to give STE UK adequate information or instructions; or

(b) any factor beyond the reasonable control of STE UK (including foreign exchange fluctuations, increases in taxes and duties and increases in labour, materials and other manufacturing costs).

4.3 The price of the Goods:

(a) excludes amounts in respect of value added tax (VAT), which the Buyer shall additionally be liable to pay to STE UK at the prevailing rate, subject to the receipt of a valid VAT invoice; and

(b) includes the cost of delivery using methods of courier delivery deemed appropriate by STE UK. Where the Buyer requests a different method of delivery to that deemed appropriate by STE UK, the Buyer shall bear any extra costs of such method of delivery (provided always that this is considered suitable by STE UK given the nature of the Goods in question).

5. Terms of payment

5.1 STE UK may invoice the Buyer for the Goods on or at any time after its acceptance of the Order.

5.2 The Buyer shall pay each invoice submitted by STE UK:

(a) by no later than the date stipulated for payment on the Buyer’s invoice for the Goods; and

(b) in full and cleared funds to a bank account nominated in writing by STE UK; and

time for payment shall be of the essence of the Contract.

5.3 If the Buyer fails to make any payment due to STE UK under the Contract by the due date then, without limiting any other right or remedy available to STE UK under clause 10 (Termination), STE UK shall be entitled to:-

(a) cancel the Contract or suspend any further deliveries to the Buyer;

(b) appropriate any payment made by the Buyer to such of the Goods (or goods supplied under any other contract between the parties) as STE UK may think fit; and

(c) charge the Buyer interest on the overdue sum, whether before or after judgment. Interest under this clause will accrue each at the rate of 4% a year above Bank of England’s base rate from time to time but at 4% a year for any period when that base rate is 0% or below 0%. Part of a month shall be treated as a full month for calculating interest.

5.4 All amounts due under the Contract from the Buyer shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax to the extent required by law).

6. Delivery

6.1 Delivery shall be arranged by STE UK using carrier methods deemed appropriate by it at its sole discretion to locations within the UK only. STE UK does not sell or deliver Goods to locations outside the UK.

6.2 The Goods shall either:

(a) be delivered by carrier to the Buyer (Delivery) at any time after STE UK has notified the Buyer that the Goods are ready for Delivery, unless otherwise agreed in writing, to the location set out in the Order or such other location as the parties may subsequently agree in writing (Delivery Location); or

(b) be collected by the Buyer (“Collection”) within 3 Business Days of STE UK notifying the Buyer that the Goods are ready for Collection unless agreed otherwise in writing, from STE UK’s premises at Unit 12, Stadium Court, Bromborough, CH62 3RP (STE UK’s Premises).

6.3 Delivery is completed:

(i) in the case of Collection, on the loading of the Goods by STE UK at STE UK’s Premises;

(ii) in all other cases, on arrival of the carrier at the Delivery Location. Delivery is to kerbside only and the Buyer shall be responsible for the unloading of the Goods on arrival at the Delivery Location.

6.4 Any dates quoted for Delivery or Collection of the Goods are approximate only and time of delivery is not of the essence. The Goods may be delivered in advance of the quoted delivery date on giving reasonable notice to the Buyer.

6.5 Late delivery: STE UK shall not be liable for any delay in delivery of the Goods by reason of any cause beyond STE UK’s reasonable control or the Buyer’s failure to supply STE UK with adequate delivery or other instructions that are relevant to the supply of the Goods.

6.6 No delivery: If STE UK fails to deliver the Goods (or any instalment), STE UK’s liability shall be limited to the cost and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods or the value of the undelivered Goods, whichever is the lesser. STE UK shall have no liability for any failure to deliver the Goods (or any instalment) to the extent that such failure is for any cause beyond STE UK’s reasonable control or due to the Buyer’s fault, including the Buyer’s failure to supply STE UK with adequate delivery or other instructions that are relevant to the supply of the Goods.

6.7 Buyer’s fault: If the Buyer fails to (i) Collect the Goods within 3 Business Days or (ii) accept or take Delivery of the Goods, STE UK having notified the Buyer that the Goods are ready for Collection or Delivery as the case may be then, except where such failure or delay is caused by reasons beyond the Buyer’s reasonable control or STE UK’s failure to comply with its obligations in respect of delivery under the Contract in respect of the Goods, without limiting any other right or remedy available to STE UK:

(a) Delivery or Collection of the of the Goods, as the case may be, shall be deemed to have been completed at 9 am on the third Business Day after the day on which STE UK notified the Buyer that the Goods were ready; and

(b) Subject to clause 6.8, STE UK shall store the Goods until actual Delivery or Collection, as the case may be, takes place and charge the Buyer for all reasonable related costs and expenses (including insurance and re-delivery).

6.8 If ten Business Days after the day on which STE UK notified the Buyer that the Goods were ready for Delivery or Collection, the Buyer has not accepted or taken actual delivery of them or collected them, as the case may be, STE UK may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable costs and expenses including storage and selling costs, account to the Buyer for any excess over the price of the Goods in respect of which payment has been received by STE UK or charge the Buyer for any shortfall below the price of the Goods.

6.9 STE UK may deliver the Goods by instalments. Each instalment shall constitute a separate contract and shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Buyer to cancel any other instalment.

7. Risk and property (title)

7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:-

(a) in the case of Collection, when STE UK loads the Goods onto the relevant vehicle; or

(b) in any other case, at the time of arrival of the Goods by carrier at the Delivery Location.

7.2 Property (title) in the Goods shall not pass to the Buyer until the earlier of:

(a) STE UK has received payment in full (in cash or cleared funds) for the Goods and all other goods STE UK has supplied to the Buyer, in which case title to the Goods shall pass at the time of payment of all of such sums; and

(b) the Buyer resells the Goods, in which case tittle to the Goods shall pass to the Buyer at the time specified in clause 7.4 .

7.3 Until the property in the Goods has passed to the Buyer, the Buyer shall:

(a) store the Goods separately from all other goods of the Buyer and third parties and marked as STE UK’s property, so that they remain readily identifiable as the STE UK’s property;

(b) maintain the Goods in satisfactory condition and keep them properly stored, protected and insured against all risks for their full price from the date of completion of delivery (as set out in clause 6.3);

(d) give STE UK such information as STE UK may reasonably require from time to time relating to:

(i) the Goods; and

(ii) the ongoing financial position of the Buyer;

(e) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods.

7.4 Subject to clause 7.5, the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business (but not otherwise) before STE UK receives payment for the Goods provided always that if the Buyer resells the Goods before that time:

(a) It does so as principal and not as STE UK’s agent; and

(b) property in the Goods shall pass from STE UK to the Buyer immediately before the time at which resale by the Buyer occurs.

7.5 At any time before property in the Goods passes to the Buyer, STE UK may:

(a) by notice in writing, terminate the Buyer’s right under clause 7.4 to resell the Goods or use them in the ordinary course of its business; and

(b) require the Buyer to deliver up all Goods in its possession that have not been resold and if the Buyer fails to do so promptly, to enter into any premises of the Buyer or a third party where the Goods are stored in order to recover them.

7.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain STE UK’s property, but if the Buyer does so all moneys owing to STE UK shall (without prejudice to any other right or remedy of STE UK) forthwith become due and payable.

8. Quality and Warranties

8.1 Without prejudice to the generality of clause 2.3, any performance figures of the Goods in any sales or other literature are approximate only and shall have no contractual force.

8.2 STE UK warrants that on delivery and for a period of 24 months from delivery (“Warranty Period”), the Goods shall:

(a) conform with their description;

(b) be free from defects in design, material and workmanship;

8.3 Pre-conditions to exercising remedies: Subject to clause 8.4, provided that:

(a) the Buyer gives notice in writing to STE UK during the Warranty Period and within a reasonable time after discovery that some or all of the Goods do not comply with the warranty set out in clause 8.2:

(b) STE UK is given a reasonable opportunity of examining such Goods; and

(c) the Buyer (if asked to do so by STE UK) returns such Goods to STE UK’s place of business at the Buyer’s cost together with evidence in a form reasonably required by STE UK of the date of purchase (such as an invoice or receipt)

STE UK shall, at its option, repair or replace the defective Goods, or refund the price paid for the defective Goods in full. For the sake of greater clarity, if this procedure is not followed by the Buyer, the Buyer shall not be entitled to reject the Goods and STE UK shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price of Goods in full.

8.4 Exclusions: STE UK shall not be liable for the Goods’ failure to comply with the warranty in clause 8.2 if:

(a) the Buyer makes any further use of such Goods after giving notice in accordance with clause 8.3 unless otherwise agreed by STE UK in writing acting reasonably;

(b) the defect arises because the Buyer failed to follow STE UK’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;

(d) the defect arises as a result of fair wear and tear, wilful damage, negligence or abnormal storage or working conditions.

8.5 Except as provided in this clause 8, STE UK shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 8.2.

8.6 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute (including without limitation sections 13-15 of the Sale of Goods Act 1979) or common law are excluded to the fullest extent permitted by law.

8.7 These Conditions shall apply to any repaired or replacement Goods supplied by STE UK.

9. Limitation of liability

9.1 The restrictions on liability in this clause 9 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

9.2 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a) death or personal injury caused by negligence;

(b) fraud or fraudulent misrepresentation;

(d) defective products under the Consumer Protection Act 1987.

9.3 Subject to clause 9.3, STE UK’s total liability to the Customer shall not exceed the price paid for the Goods.

9.4 Subject to clause 9.3, the following types of loss are wholly excluded:

(a) loss of profits;

(b) loss of sales or business;

(d) loss of anticipated savings;

(e) loss of use or corruption of software, data or information;

(f) loss of or damage to goodwill; and

(g) indirect or consequential loss.

9.5 STE UK shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of STE UK’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond STE UK’s reasonable control.

9.6 This clause 9 shall survive termination of the Contract.

10. Termination

10.1 Without limiting its other rights or remedies, STE UK may terminate this Contract with immediate effect by giving written notice to the Buyer if:

(a) the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 Business Days of the Buyer being notified in writing to do so;

(b) the Buyer 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), obtaining a moratorium, 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 Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

(d) the Buyer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

10.2 Without limiting its other rights or remedies, STE UK may suspend provision of the Goods under the Contract or any other contract between the Buyer and STE UK if the Buyer becomes subject to any of the events listed in clause 10.1(b) to clause 10.1(d), or STE UK reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on or before the due date for payment.

10.3 Without limiting its other rights or remedies, STE UK may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on or before the due date for payment.

10.4 On termination of the Contract for any reason the Buyer shall immediately pay to STE UK all of STE UK’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, STE UK shall submit an invoice, which shall be payable by the Buyer immediately on receipt.

10.5 Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

10.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.

11. General

11.1 Provision of information: the Buyer shall provide such information about its financial position and creditworthiness as STE UK may from time to time reasonably require, including without limitation management accounts and cashflow forecasts.

11.2 Variation: No variation of this Contract shall be effective unless in writing and signed by the parties (or their authorised representatives).

11.3 Assignment and other dealings: STE UK 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 the Contract. The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of STE UK.

11.4 Notices: Any notice given to either party under or in connection with the Contact shall be in writing, addressed to that other party at its registered office (if a company) or principal place of business (in any other case) or such other address as may be notified in accordance with this clause and shall be (i) delivered by hand or by pre-paid first-class post or other next working day delivery service ; or (ii) sent by email to the following addresses (or an address substituted in writing by the party to be served): STE UK: sales@stiebel-eltron.co.uk ; Customer: email address notified at the time of Order.

Any notice shall be deemed to have been received if delivered by hand, at the time the notice is left at the proper address; 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 if sent by email, at the time of transmission, or, if this time falls outside the hours of 9 am to 5 pm on a Business Day in the place of receipt (Business Hours), when Business Hours resume. This clause 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.

11.5 Waiver: A waiver of any right or remedy of STE UK is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy of STE UK shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

11.6 Severance: 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 provision in question shall not be affected.

11.7 Entire agreement: The Buyer agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

11.8 Third party rights: 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. The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

11.9 Governing law and jurisdiction: The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England. The parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation