Conditions Of Sale Of Elantra Procurement LTD
1. Interpretation
1.1 In these conditions: “Buyer” means the counterparty to the Contract; “Contract” means a contract between Buyer and Elantra for the sale of Products; “Goods” means all goods purchased under a Contract; “Order” means any order howsoever issued in relation to Products; “Products” means Goods and/or Services; “Quotation” means an invitation to treat delivered to Buyer in response to an enquiry; and “Services” means all services purchased under a Contract.
1.2 All Products are offered and all Contracts, however formed, are entered into subject to these Conditions to the exclusion of all other terms or conditions (other than any which cannot be excluded by law). No other terms and conditions are binding on Elantra and Buyer waives any right to rely on the same. Elantra’s performance of a Contract is conditional upon Buyer accepting these Conditions without amendment. Elantra’s pre-contractual quotations are non-binding.
2. Orders and Specifications
2.1 An Order constitutes an offer to purchase Products from Elantra subject to these Conditions. An Order cannot be cancelled or varied after having been accepted by Elantra except with the written agreement of Elantra and Buyer undertaking to pay all costs incurred by Elantra arising in connection with such cancellation or variation.
2.2 Elantra relies on Buyer to place an accurate Order. Buyer is solely responsible for ensuring that each specification in a Contract is accurate and adequate and that there is no omission or imprecision in a Contract.
2.3 Provided that there is no material adverse effect on the qualities of Products, Elantra reserves the right at any time to alter the specification for any Products to conform to applicable laws/ standards or otherwise.
2.4 Prototypes, samples or test work shall be at the risk of Buyer and Elantra accepts no liability for the same. If Buyer approves any prototype, sample or test work, unless otherwise agreed in writing Elantra has no liability for Products matching such prototype, sample and/or test work and Buyer cannot reject such Products.
2.5 All information and details contained in Elantra’s advertising, sales and technical literature are provided for guidance only and their accuracy is not guaranteed. No such data or information will form part of the Contract and Elantra will not in any event be liable for any inaccuracies or omissions. Unless agreed by Elantra in writing, Elantra has no liability whatsoever in respect of any failure of the Products to achieve indicative performance targets.
2.6 Any advice of Elantra relating to the use of the Products that is not confirmed in the Contract in writing cannot be relied upon by Buyer and therefore at all times it is for Buyer to satisfy itself of the suitability of the Products for its own particular purpose.
3. Delivery
3.1 Carriage for the Goods will be arranged by Buyer unless Elantra otherwise agrees in writing. Time for delivery is not of the essence of the Contract. Section 32(2) of the Sale of Goods Act 1979 does not apply and Elantra is not bound to give notice under section 32(3) of that Act. Buyer shall have no right to damages or to cancel an Order for late delivery due to Elantra’s acts or omissions unless the due date for delivery has passed by more than 30 days.
3.2 Performance of the Contract is dependent upon prompt provision of all necessary information, drawings, final instructions and approvals by Buyer to Elantra.
3.3 Elantra warrants that the Goods will comply with the corresponding specification agreed by Elantra in a Contract as from delivery and for a period expiring on the earlier of 18 months as from delivery or 12 months as from the Goods being put into service.
3.4 No compensation is due for shortage in the delivery quantity or defective Products unless a written complaint is received within 3 days of delivery, or where any defect is not apparent on reasonable inspection, within 3 days after the earlier of discovery or when it ought reasonably to have been discovered if earlier.
3.5 Buyer agrees to accept delivery in instalments. If Buyer declines to accept delivery, Buyer must pay for the Goods nevertheless and meet all of Elantra’s reasonable storage and/or disposal charges. Elantra may charge for the containers and packaging or require that they are returned to Elantra.
3.6 Loading of Goods is the responsibility and cost of Buyer unless Elantra otherwise agrees in writing. Buyer is responsible for unloading of Goods, without causing loss or damage to Elantra, in accordance with applicable laws and standards unless Elantra otherwise agrees in writing. If Elantra is responsible for delivery and unloading, Buyer must provide suitable access and facilities for delivery and unloading of Goods and Buyer is responsible for all loss of or damage to the Goods as a result of unsuitable access or facilities.
3.7 Services are performed with reasonable skill and care and are deemed accepted unless a written complaint is received within 14 days of performance.
3.8 All other warranties, terms and conditions implied by law relating to fitness, quality, description or adequacy are excluded to the fullest extent permitted by law.
4. Risk and title
4.1 Risk passes to Buyer and Buyer is responsible for damage, loss or deterioration of Goods when the Goods are made available for collection by Buyer or, if Elantra arranges carriage, risk passes when the Goods are delivered to Buyer. Buyer must then insure the Goods for their replacement value.
4.2 Title (legal and equitable) to Goods passes to Buyer only upon the Buyer paying in full all sums (including interest) due to Elantra under all Contracts between Elantra and Buyer. Elantra may recover Goods in respect of which title has not passed at any time and Buyer irrevocably allows Elantra and its agents to enter any premises, with or without vehicles, to recover such Goods. Until title has passed to Buyer the Goods must be kept by Buyer as fiduciary agent and bailee of Elantra and must be stored separately from other goods clearly identifiable as belonging to Elantra. Before title has passed Elantra may claim the price of the Goods when due. If Buyer sells Goods prior to title passing in the ordinary course of business, Buyer shall account to Elantra for the resulting proceeds of sale.
4.3 Buyer shall not be entitled to pledge or in any way charge by way of security for its indebtedness any Goods which remain the property of Elantra.
4.4 If Elantra undertakes investigative services, Buyer provides the items to Elantra at Buyer’s own risk and Elantra provides no guarantee the items are repairable.
4.5 If , pursuant to clause 4.4, Buyer fails to collect any items within two weeks of Elantra’s final diagnosis, Buyer agrees the items are no longer required by Buyer and Elantra shall be free to dispose of such items as it sees fit without liability to Buyer.
5. Price and payment
5.1 Applicable prices for Products are those specified by Elantra in the Contract. Unless otherwise agreed in writing by Elantra an additional charge will be made for carriage of goods for delivery inside and outside the United Kingdom and/or for packaging. Prices are exclusive of VAT. Prices may be varied to take account of: (i) any increase in Elantra’s costs of supplying Products; (ii) any variations that Elantra has agreed to; (iii) delay or costs caused by Buyer’s failure to provide accurate instructions or information; (iv) any effect of the UK leaving the European Union.
5.2 Unless otherwise agreed in writing by Elantra, payment for Products shall be due within 30 days of the date of ELANTRA’ invoice, whether or not delivery has taken place, and shall be paid electronically. In the case of credit account customers, punctual payment is a condition precedent to further deliveries of Products. Time for payment is of the essence. Buyer shall pay in pounds sterling without set-off, deduction, counterclaim or other withholding. Payment is not deemed made until Elantra has received cash or cleared funds in respect of the full amount outstanding. If Buyer fails to make payment in full on the due date, Elantra may charge interest (both before and after judgment) daily on the amount unpaid at 4% above Bank of England’s base rate from time to time together with Elantra’s reasonable costs of pursuing payment. Elantra may raise a separate invoice in respect of each consignment delivered under a Contract. If Buyer’s credit status changes, Elantra may revise any credit terms.
5.3 Elantra shall have a lien over all property of Buyer which may be in Elantra’s possession in respect of all sums due from Buyer to Elantra. If monies due to Elantra are not paid within 14 days of the due date, Elantra may sell any property over which it has a lien and apply the sale proceeds to discharge any costs of sale, in repaying interest owed by Buyer to Elantra, in payment of any principal sums owed to Elantra and Elantra shall account to Buyer
for the remainder (if any).
6. Liability
6.1 Liability for fraud, death or personal injury resulting from Elantra’s negligence, or any other liability which cannot be excluded or limited by law, is not excluded.
6.2 Elantra is not liable for loss of profits, loss of business opportunities, loss of contracts, loss of production, increased costs of labour and/or materials, damage to goodwill, economic loss or any indirect or consequential losses.
6.3 Subject to clause 6.1, Elantra’s liability arising in connection with the performance or contemplated performance of the Contract is limited to: (i) the cost of repairing or replacing faulty Goods; and (ii) the cost of re-performing any deficient Services, in each case limited to an amount equal to the moneys received by Elantra under the Contract in respect of those Goods and Services. Elantra is allowed the opportunity to remedy before Buyer can claim or remedy the matter itself.
6.4 Subject to clause 6.1, Elantra is not liable: (i) until Elantra has received payment in full under the Contract; (ii) to the extent Buyer and/or any third parties do not follow any information, instructions and/or warnings supplied with the Products; (iii) if Buyer and/or any third parties does not store, install, use and maintain the Goods suitably; (iv) if Buyer and/or any third parties uses unsuitable lubricant, defective mounting or connection or any other factor causing a defect beyond the reasonable control of Elantra; (v) if any repairs or alterations are undertaken by or on behalf of Buyer without the prior written consent of Elantra; (vi) for fair wear and tear or damage due to accident, neglect or misuse; (vii) for use of Products after Buyer and/or any third parties becomes or should reasonably have been aware of any defect; (viii) for circumstances beyond Elantra’s control such as: governmental actions, war, emergency, civil disturbance, terrorism, Act of God, fire, explosion, flood, epidemic, accident, power failure, breakdown of machinery, import or export embargo, labour dispute, national shortage of materials, fuel, parts, machinery or labour, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials; (ix) to the extent due to Products being supplied or the Services being performed in accordance with Buyer’s specification or drawings; (x) for Goods not of Elantra’s manufacture where Elantra will to the extent possible assign any rights it has against the manufacturer to the Buyer; or (xi) for any delay or effect on the Contract due to the UK leaving the European Union, including during any extensions to Article 50 or transitional periods.
6.5 Buyer indemnifies Elantra for losses and damages which Elantra incurs (including for legal actions in which Elantra is involved), if any claim is made against Elantra relating to any composite into which the Goods are incorporated or other products with which the Goods are used where the Goods supplied by Elantra are either (i) not the defective part of any composite or other product; or (ii) are rendered the defective part or become defective by reason of acts or omissions of Buyer or a 3rd party; or (iii) are rendered the defective part or become defective by reason of instructions or warnings given by the supplier of the composite or other products.
6.6 Buyer shall indemnify Elantra, its employees, agents and sub-contractors against loss or damage to any property or injury or death of any person caused by any negligent act or omission or wilful misconduct of Buyer, its employees, agents or sub-contractors.
6.7 Prices for Products are based on the limitations and exclusions in these Conditions. Buyer is encouraged to take out insurance to cover losses for which liability is not Elantra’s. Each limitation and exclusion herein applies to liability for breach of contract, liability in tort (including negligence), liability for breach of statutory duty and liability for breach of common law.
7. Termination
7.1 Elantra can terminate or suspend a Contract by giving written notice if: (i) Buyer fails to pay money when due and payable; (ii) Buyer fails to take delivery when due; (iii) Buyer breaches the terms of the Contract or any other Contract in a material respect; (iv) Buyer ceases or threatens to cease carrying on business; (v) Buyer is declared or becomes insolvent or bankrupt, enters into receivership, administration, liquidation, administrative receivership or has a moratorium declared in respect of any of its indebtedness, or threatens to do any of the above; (vi) in Elantra’s reasonable opinion, Buyer is unable to fulfil its obligations under a Contract; or (vii) Elantra believes any of the above is about to occur; (viii) Elantra is unable to fulfil the Contract or if an event in Clause 6.4 (viii) or (xi) occurs
7.2 Termination of a Contract is without prejudice to rights and duties arising prior to termination and without prejudice to any other Contract in force.
8. Compliance and consents
8.1 Buyer warrants and represents that it: (i) is not subject to any trade sanctions imposed by the US, EU and/or UN; and (ii) shall comply with (and not engage any activity, practice or conduct which would constitute an offence under) all applicable laws, statutes, regulations and codes, including those relating to trade restrictions and/or export controls (including trade sanctions imposed by the UK, US, EU and/or UN) in respect of the Products sold to it by Elantra.
8.2 Buyer and Elantra undertake to each other that they will not, and will procure that their employees and any associated persons will not, in the course of performing their obligations under a Contract, engage in any activity which would constitute a breach of the Bribery Act 2010 or the Modern Slavery Act 2015 or any other applicable laws relating to anti-bribery and corruption and modern slavery and servitude and that they have in place compliance programmes designed to ensure compliance with the terms of those Acts and other applicable laws.
8.3 Buyer will provide evidence of compliance with the provisions of 8.1 and 8.2 as Elantra may reasonably request from time to time.
8.4 Elantra may suspend or terminate any Contracts without liability if Elantra becomes aware Buyer has or may breach the provisions of clause 8 or reasonably believes Elantra must suspend or terminate such Contracts to protect its reputation.
8.5 Buyer will be responsible for all consents, approvals, import or other licences, permissions or authorisations required by any legislation or regulations whether in the United Kingdom or elsewhere for the Buyers purchase and use of the Product and any failure to obtain the same, unless the Contract specifically provides otherwise. The Order constitutes a warranty and representation by Buyer that it has obtained every necessary consent, approval, licence, permit or authority that may be required in connection with the Products and their supply to Buyer.
9. Confidentiality
Buyer shall treat as confidential and shall not disclose to any third party any operational or pricing information of Elantra obtained in connection with the Contract and this obligation shall continue after expiry or termination of the Contract.
10. Marketing
Elantra will only capture and store information provided by Buyer on a voluntary basis and therefore with Buyer’s consent including allowing Elantra or Elantra’s agent from time to time to contact Buyer or send Buyer information about Elantra’s latest products, services and/or promotional activities. Should Buyer not wish to receive them, Buyer must inform Elantra in writing.
11. General
11.1 Buyer represents that it is not a consumer, although nothing in these Conditions prejudice the statutory rights of any consumer.
11.2 By entering into a Contract, Buyer confirms the Contract contains the whole agreement between the parties and Buyer has not relied on any statement not expressly incorporated into the Contract, provided that liability for fraud is not excluded. No statement made to Buyer is binding on Elantra unless it is in writing and Elantra confirms in writing that Buyer can rely on it. No variation is binding on Elantra unless in writing signed by Elantra.
11.3 No Contract is enforceable by any person other than Buyer and Elantra. Buyer cannot assign its rights or subcontract its obligations under a Contract. Elantra may sub-contract in whole or part its obligations under a Contract.
11.4 Unenforceable conditions shall not affect the enforceability of the remainder of the Contract. Failure to enforce a provision is not a waiver of any rights under the Contract. Elantra’s remedies are
cumulative not exclusive.
11.5 Buyer agrees to abide by Elantra’s policies and procedures stipulated as applicable in the Contract.
11.6 Any notice must be in writing addressed to that other party at its registered office or principle place of business or such other address as may at the relevant time be notified under this provision to the party giving the notice.
11.7 If bespoke terms and conditions are agreed, these Conditions remain binding on the parties to a Contract. Any discrepancy between these Conditions and any other agreed terms may only be construed against Elantra if such other terms are in writing agreed by Elantra.
11.8 Buyer shall indemnify Elantra against any losses and damages Elantra incurs as a result of or in connection with the transfer of any employees to the Buyer pursuant to the Transfer of Undertakings (protection of Employment Regulations) 2006 in connection with the Contract.
11.9 The construction, performance, validity and all aspects of each Contract are governed by English law and the parties accept the jurisdiction of the English courts.
