Terms and Conditions of Sale
These Conditions are the standard terms and conditions of sale of Heliex Power Limited
The following definitions shall apply to these Conditions:
Contract means the contract between Heliex and the Customer in respect of the Deliverables created in accordance with clause 2.1;
Customer means the person, firm or company which purchases the Deliverables from Heliex;
Deliverables means any Goods and/or Services to be provided by Heliex under the Contract;
Delivery Address means Heliex’s premises or such other location as the Customer requests and which has been confirmed by Heliex in the Sales Order Acknowledgement;
Deposit means the deposit (if any) or stage payments (if any) to be paid to Heliex by the Customer under the Contract, the amount of which is set out in the Sales Order Acknowledgement and/or other documentation as listed in Clause 2.2;
Distribution Agreement means the agreement, if any, between Heliex and the Customer in relation to the distribution of Heliex’s Goods and / or Services
Generators means any expanders and/or generator sets together with any related or ancillary equipment;
Goods means any Generators, Parts or other goods (as specified in the Sales Order Acknowledgement) to be supplied under the Contract or which Heliex otherwise provides or agrees to provide to the Customer;
Heliex means Heliex Power Limited whose registered office is at Kelvin Building, Bramah Avenue, East Kilbride G75 0RD;
Intellectual Property Rights means any and all intellectual property rights of any kind existing anywhere in the world (whether existing now or at any time in the future) whether or not registered or registrable and all applications, renewals and extensions of the same and whenever arising, registered or applied to be registered including, without limitation, copyright, database rights, design rights, patents, trade marks, service marks, trade names and other rights in goodwill, rights in know-how, trade secrets and other confidential information;
Sales Order Acknowledgement means the order acceptance which is issued by Heliex pursuant to clause 2.1 and which sets out the Deliverables to be provided by Heliex to the Customer under the Contract;
Parties means Heliex and the Customer, and "Party" shall be construed accordingly;
Parts means any spare or replacement parts for Generators or any related equipment;
Price means the price to be paid by the Customer for the Deliverables pursuant to clause 4.1;
Proposal means any proposal, quotation or similar document issued by Heliex in connection with the proposed provision of the Deliverables;
Services means any services to be provided by Heliex under the Contract (which services shall be described in the Sales Order Acknowledgement) or which Heliex otherwise provides or agrees to provide to the Customer;
Specification means in relation to any Goods, Heliex’s standard published specification(s) for such Goods from time to time, or such other specification(s) as may be agreed by the Parties (in writing) and set out in or expressly incorporated into the Contract;
Warranty Policy means Heliex’s standard warranty policy document as at the date of the Contract which is applicable to Goods manufactured and supplied by Heliex, which warranty forms part of and shall be deemed to be incorporated into these Conditions.
2 The Contract
2.1 Where the Customer submits an order to Heliex (by whatever means), that order constitutes an offer to purchase Goods and/or Services in accordance with these Conditions, that order shall only be deemed to be accepted when Heliex issues a Sales Order Acknowledgement to the Customer, at which point and on which date the Contract shall be formed and the Parties bound accordingly. Heliex will endeavour to issue the Sales Order Acknowledgement (or a rejection with request for modification) within 5 working days from the receipt of the order from the Customer.
2.2 These Conditions will apply to and be incorporated into the Contract, to the exclusion of any terms and conditions which the Customer may seek to introduce or rely upon (whether contained or referred to in a purchase order, purported acceptance or any other document or communication whatsoever) or which would otherwise be stated or implied by law, trade custom or practice, except to the extent that the Parties may have agreed and documented specific modifications relating to individual projects.
In the event of any inconsistency between documents the following order of precedence shall apply:
Sales Order Acknowledgement
Terms and Conditions of Sale (“the Conditions”)
Distribution Agreement (if any)
2.3 A Proposal shall be binding for Heliex for the validity stated in the Proposal, unless withdrawn in writing, only on the terms included within that Proposal.
2.4 Any samples, drawings, illustrations, prices, descriptive matter, dimensions and other data included in catalogues, brochures, websites, circulars and other such materials or media constitute approximate guides only. They shall not form part of the Contract or have any contractual force, save where and to the extent that the Contract expressly provides otherwise.
2.5 The Contract constitutes the entire agreement between Heliex and the Customer, and the Customer acknowledges that it has not relied upon any statement, promise or representation which is not set out in the Contract.
3.1 Heliex shall use its reasonable endeavours to provide the Deliverables to the Customer in all material respects in accordance with the Contract and any applicable Specification.
3.2 Heliex reserves the right to amend any applicable Specification if required by any applicable law or safety requirement, and/or to make any changes to the Services which are necessary to comply with any applicable law or safety requirement or which do not materially affect the nature or quality of the Services.
3.3 Heliex shall use its reasonable endeavours:-
3.3.1 subject to clause 5.1, to deliver the Goods on or around the delivery date(s) specified in the Sales Order Acknowledgement; and/or
3.3.2 to meet any performance dates for the Services which are specified in the Sales Order Acknowledgement,
but any such dates are good faith estimates only and time shall not be of the essence for the delivery of the Goods and/or the performance of the Services.
3.4 The Customer shall provide Heliex with such assistance as it may reasonably require in relation to the provision of the Deliverables and shall, in particular but without limitation:-
3.4.1ensure that its order is complete and accurate and that the Deliverables meet the Customer's requirements;
3.4.2 co-operate with Heliex in all matters relating to the provision of the Goods and/or the performance of the Services;
3.4.3 provide Heliex with such information and materials as Heliex may reasonably require to provide the Goods and/or to perform the Services, and to ensure that it is accurate in all material respects;
3.4.4 ensure that any actions which require to be completed by a particular date to facilitate the provision of the Deliverables by Heliex are so completed;
3.4.5 provide, for Heliex, its agents, sub-contractors and employees, such access to the Customer’s premises as Heliex may reasonably require in order to provide the Deliverables; and
3.4.6 inform Heliex of all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer’s premises.
3.5 Heliex shall not be liable for any costs, charges or losses sustained or incurred by the Customer where Heliex's performance of its obligations under the Contract is prevented or delayed (whether directly or indirectly) by any act or omission of the Customer, its agents, sub-contractors or employees.
4.1The price for the Deliverables ("the Price") shall (subject to any adjustment in accordance with these Conditions), be as specified in the Contract or, if not so specified, shall be Heliex's standard price (whether or not set out in Heliex's published price list as at the date of the Contract) for such Goods and/or Services.
4.2 The Price is exclusive of (i) VAT or any other tax, duty or levy pertaining to the Deliverables; and (ii) any and all costs and charges of packaging, insurance, import/export and transport, which sums shall be added to the invoice(s) issued by Heliex to the Customer.
4.3 Save where provided otherwise in the Sales Order Acknowledgement, Heliex shall be entitled to invoice the Customer for the Price and any sums to be added to the invoice pursuant to clause 4.2 as follows:-
4.3.1 in the case of Goods, on the date of which the Goods are delivered under Clause 5
4.3.2 in the case of Services, on the date on which the services are provided to the Customer and where these are provided over a period of time on the first day of that period with the amounts stated in such invoices being expressed and payable (without any set off or deduction whatsoever) in POUNDS STERLING.
4.4 Unless otherwise agreed in the Sales Order Acknowledgement or Distribution Agreement, the Customer shall pay each invoice issued to it by Heliex within thirty (30) days of the date of such invoice.
4.5 If the Customer fails to pay any invoice issued by Heliex by the due date, Heliex shall be entitled (without prejudice to any other right or remedy it may have) to:
4.5.1cancel or suspend any further delivery or performance (as the case may be) of the Deliverables under any Contract;
4.5.2 make any or all future deliveries or performance (as the case may be) of the Deliverables under any Contract conditional upon the Customer paying for them in advance; and/or
4.5.3 charge interest at the rate of % per annum above the base rate of the Bank of England from time to time, such interest period to run from the due date for payment until payment in full of the sum outstanding (including interest) by the Customer.
4.6 Where the Contract specifies that a Deposit is payable by the Customer, such Deposit must be paid to Heliex in accordance with the Contract. Heliex shall be entitled to withhold performance of its obligations under the Contract until such times as the Deposit is so paid. In the event that the Deposit is not paid within 7 days of the due date for payment, Heliex shall notify the customer of a payment default. In the event that the Deposit is not paid within a further 7 days, Heliex shall be entitled to terminate the Contract forthwith and without liability by notice in writing to the Customer. Deposits are not refundable except at the sole discretion of Heliex.
4.7 Heliex shall (without prejudice to any other rights it may have) be entitled to set off any liability owed by the Customer to Heliex against any liability of Heliex to the Customer.
5.1 Heliex shall arrange delivery of the Goods to, and the Customer shall take delivery of the Goods at, the Delivery Address for the relevant Contract. Heliex will use its reasonable endeavours to so deliver the Goods on or around the delivery date(s) specified in the Sales Order Acknowledgement, but such date(s) are approximate only and, unless otherwise expressly stated in writing, time is not of the essence for delivery of the Goods.
5.2 Delivery shall be deemed to have occurred:-
5.2.1 where the Delivery Address is Heliex's premises, one week after the Customer has been notified that the Goods are available for collection from Heliex's premises; or
5.2.2 where the Delivery Address is not Heliex's premises, upon the arrival of the Goods at the Delivery Address.
5.3 Unless the method of packaging and shipping is specified in the Sales Order Acknowledgement, the method of packaging and shipping shall be at the sole discretion of Heliex, provided that Heliex shall select a method of shipping and packaging which it considers is suitable for the Goods.
5.4 Heliex shall have no liability whatsoever for any delay in delivering or any failure to deliver the Goods where such delay or failure is caused by a Force Majeure Event or the Customer's failure to provide Heliex with adequate and/or accurate delivery instructions for the Goods.
5.5 Save where and to the extent provided otherwise in these Conditions, Heliex shall have no liability whatsoever to the Customer for any loss of profit, business, income, contracts or opportunity, loss of or corruption to data, loss of use, loss of anticipated savings, or any indirect or consequential loss, costs, damages, charges or expenses whatsoever caused directly or indirectly by any delay in the delivery of the Goods.
5.6 Where the Customer is unable to collect or take delivery of the Goods in accordance with these Conditions, Heliex shall be entitled to arrange for the storage and/or transportation of the Goods and the Customer shall be responsible for any and all charges incurred by Heliex in so storing and/or transporting the Goods.
5.7 Heliex may deliver the Goods by instalments, which may be invoiced separately.
5.8 It shall be the Customer's responsibility to obtain, at its own cost, any import licences and other consents in relation to the Goods which may be required from time to time and, if required by Heliex, the Customer shall make those licences and consents available to Heliex prior to the relevant shipment.
6 Title and risk
6.1 Title to and ownership of the Goods shall remain vested in Heliex until Heliex has received payment in full (in cash or cleared funds) of all sums due to it in respect of the Goods and all other sums which are or which become due to Heliex from the Customer under any Contract.
6.2 Risk of loss of or damage to any Goods shall pass to the Customer upon delivery in accordance with clause 5.2.
6.3 Following delivery of the Products and until such time as title in and to the Goods has passed to the Customer, the Customer shall:
6.3.1 not tamper with or change either the Goods or the labelling or any accompanying documentation for the Goods;
6.3.2 insure the Goods (at its own cost) against all risks which would normally be insured against by a prudent businessperson to at least their full replacement value, and produce evidence of such insurance to Heliex upon demand;
6.3.3 store and transport the Goods in conditions that will preserve the Goods in good condition without risk of contamination or deterioration;
6.3.4 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as Heliex's property; and
6.3.5 notify Heliex immediately if the Customer becomes subject to any of the events listed in clauses 11.2.1 to 11.2.7 (inclusive).
6.4 In the event that the Customer becomes subject to any of the events listed in clauses 11.2.1 to 11.2.7 (inclusive) before title in and to the Goods has passed to the Customer, Heliex (or any third party acting on Heliex's behalf) shall be entitled to enter any of the Customer's premises where the Goods are stored, or the premises of any third party storing the Goods on the Customer's behalf, in order to recover possession of the Goods.
7.1 The Goods will be covered under warranty on the terms of the Warranty Policy prevailing at that time, a copy of which is attached to these Conditions.
8 Intellectual Property
8.1 All Intellectual Property Rights in and to the Deliverables and any works created by Heliex in the course of or in connection with the Contract (including, without limitation, designs, project development and production drawings, specifications, models, prototypes and similar and related works) are and shall remain the property of Heliex or it licensors (as the case may be).
8.2 All Intellectual Property Rights in any materials provided to Heliex by the Customer shall remain the property of the Customer or its licensors. The Customer hereby grants Heliex a non-exclusive, royalty-free license in respect of all such rights to such extent and, for such period of time, as may be necessary for the purposes of the Contract.
8.3 The Customer shall indemnify Heliex against all damages, losses and expenses arising as a result of any action or claim by a third party that any material provided to Heliex by or on behalf of the Customer infringes any Intellectual Property Rights of that third party.
9.1 Save as expressly set out in the Contract, all warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law and, in particular, Heliex makes no representation or warranty whatsoever as to the validity or enforceability of any Intellectual Property Rights in the Deliverables.
9.2 Save in the case of an International Supply Contract (as defined in the Unfair Contract Terms Act 1977), nothing in the Contract excludes or limits the liability of Heliex for death or personal injury cause by the negligence of Heliex, or for any liability which may not be excluded or limited as a matter of Scots law.
9.3 Subject to clause 9.2, and without prejudice to clause 7.2, Heliex's total liability in contract, delict (including negligence or breach of statutory duty) misrepresentation or otherwise, arising out of or in connection with the Contract and/or the Deliverables shall be limited to the total amount paid by the Customer for the Deliverables to which the claim relates.
9.4 Subject to clause 9.2, Heliex shall not be liable to the Customer for any loss of income or contracts or business or opportunity, loss of profit, depletion of goodwill, loss of or corruption to data, loss of use, loss of anticipated savings or any indirect or consequential loss or damage of any kind, howsoever arising, whether occasioned by negligence, breach of contract or otherwise.
9.5 Subject to clause 9.2, Heliex shall not be liable to the Customer in respect of any claim arising out of or in connection with the Contract and/or the Deliverables unless details of the claim are notified to Heliex in writing within three (3) months of the date when the Customer became, or ought reasonably to have become, aware of the event giving rise to the claim.
10 Change control
10.1 If either Party wishes to change the Deliverables (including but not limited to a change in any applicable Specification), it shall submit details of the requested change to the other in writing and if either Party requests any such change, the other shall, within a reasonable time, provide a written estimate of:
10.1.1 the likely time required to implement the change;
10.1.2 any proposed variations to the Price arising from the change;
10.1.3 the likely effect of the change on the Sales Order Acknowledgement; and
10.1.4 any other impact of the change on the terms of the Contract.
10.2 Heliex may, from time to time and without notice, change the Deliverables in order to comply with any applicable safety or statutory requirements, provided that such changes do not materially affect the Price, or the nature, scope or Specification of the Deliverables.
11.1 Either Party may terminate the Contract forthwith and without liability to the other by giving written notice of termination to the other Party if the other Party commits a material breach of any term of the Contract and, in the case of a breach that is capable of remedy, fails to remedy the same within thirty (30) days of receipt of written notice specifying such breach and requiring it to be remedied.
11.2 If any of the following events occur, Heliex shall be entitled to cancel the Contract and/or suspend any further deliveries forthwith and without liability by notice in writing to the Customer:-
11.2.1 the Customer ceases or suspends payments of its debts or becomes unable to pay its debts (within the meaning of Section 123 of the Insolvency Act 1986 where applicable) or commits any act of insolvency or bankruptcy;
11.2.2 the Customer enters into negotiations with, or makes or offers to make any arrangement or composition with or for the benefit of its creditors or any class thereof, including any voluntary arrangement as defined in the Insolvency Act 1986, other than for the purpose of a solvent scheme of reconstruction or amalgamation;
11.2.3 a petition or resolution is filed (including any voluntary petition in insolvency filed by the Customer), notice is given, resolution is passed or order is made for or in connection with winding up the Customer (other than for the purpose of a solvent scheme of reconstruction or amalgamation);
11.2.4 a liquidator, administrator, administrative receiver, receiver or trustee is appointed in respect of the whole or any part of the Customer's assets or business or notice is given of intention to appoint, an application is made to appoint, or an order is made to appoint any of the same;
11.2.5 any third party becomes entitled to appoint, or takes steps to appoint, an administrative receiver or receiver or administrator in respect of the whole or any part of the Customer's assets or business;
11.2.6 the Customer ceases or threatens to cease to carry on business or suspends or threatens to suspend all or substantially all of its operations;
11.2.7 any other step, event or proceeding (including application, petition, proposal or convening a meeting) is taken, in any jurisdiction to which the Customer is subject, with a view to the rehabilitation, administration, custodianship, liquidation, winding-up or dissolution of the Customer;
11.2.8 the Customer exceeds the credit limit under its account (if any) with Heliex or has failed, following written reminder with not less than 7 days’ notice, to pay any amount to Heliex when due under the Contract or any other contract or arrangement; or
11.2.9 any credit insurance required by Heliex in relation to its dealings with the Customer is cancelled, suspended or otherwise withdrawn.
11.3 Upon termination of the Contract for any reason, all unpaid invoices relating to payments due under the Contract shall become immediately payable by the Customer.
11.4 Termination of the Contract shall be without prejudice to any other right or remedy of either Party in respect of any breach of the Contract, and those provisions of the Contract which are expressly or by implication intended to survive termination of the Contract shall so survive.
12.1 If any provision of the Contract (or part of any provision) is declared by any judicial or other competent authority to be void, voidable, illegal or otherwise unenforceable then that provision or part provision shall, to the extent required, be deemed deleted and the remaining provisions of the Contract shall continue in full force and effect.
12.2 Failure or delay by either Party to exercise any right or remedy under the Contract shall not be deemed to be a waiver of that right or remedy, or prevent it from exercising that or any other right or remedy on that occasion or on any other occasion.
12.3 The Contract constitutes the entire agreement and understanding of the Parties relating to the subject matter of the Contract and supersedes all prior oral or written agreements, representations, understandings or arrangements between the Parties relating to the subject matter of the Contract.
12.4 No change or variation shall be made to the Contract except in writing in the English language, signed by the duly authorised representatives of both Parties.
12.5 Nothing in the Contract shall create, evidence or imply any agency, partnership or joint venture between the Parties.
12.6 The Customer shall not be entitled to assign, transfer, sub-license, sub-contract, charge, or otherwise deal in the Contract or any rights and obligations under the Contract (in whole or in part) without Heliex's prior written consent.
12.7 Where the Customer provides Heliex with any personal data in connection with the Contract, Heliex shall be entitled to process such personal data for the purposes of the Contract and for related purposes (including, without limitation, submission to a credit reference agency and/or marketing).
12.8 The delivery date agreed in the Sales Order Acknowledgement shall be postponed in the occurrence of a Force Majeure Event, causes including acts of God, wars, revolutions and official strikes declared by a recognised trade union extended on the national territory during at least 3 consecutive working days (or 7 non-consecutive working days). Delivery delays caused by any sub supplier of Heliex will not considered as force majeure, unless these delays originate from Force Majeure Event causes as listed above.
12.9 The Contract shall be governed by and construed in all respects in accordance with the laws of Scotland and the Parties agree submit to submit to the exclusive jurisdiction of the courts of Scotland.
13 Issue Date
13.1 These Conditions were approved for use and issued on 3rd August 2016.