Terms and Conditions

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UDISYS LIMITED – TERMS AND CONDITIONS OF SALE

The customer’s attention is drawn in particular to clause 12.
1. INTERPRETATION
1.1 Definitions:
Business Day: a day, other than a Saturday, Sunday or public holiday in England.
Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 15.3.
Contract: the contract between Udisys and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from Udisys.
Delivery Location: has the meaning given in clause 4.2.
Force Majeure Event: any event, circumstance or cause beyond a party’s reasonable control, including:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination, or sonic boom;
(e) any law or action taken by a government or public authority, including imposing an export or import restriction, quota, or prohibition, or failing to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident;
(g) any labour or trade dispute, strikes, industrial action or lockouts; and
(h) non-performance by Manufacturer’s, suppliers or subcontractors; and
(i) interruption or failure of utility service.
Goods: the goods (or any part of them) set out in the Order.
Losses: all liabilities, damages, losses (including loss of profits, loss of business, loss of reputation, loss of savings and loss of opportunity), fines, expenses and costs (including all interest, penalties, legal costs (calculated on a full indemnity basis) and reasonable professional costs and expenses).
Manufacturer: the manufacturer who produces the Goods for Udisys.
Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form, or the Customer’s written acceptance of Udisys’s quotation, as the case may be.
Specification: any specification for the Goods, including any related plans and drawings, or requests, that are agreed in writing by the Customer and Udisys.
Udisys: Udisys Limited, a company registered in England and Wales at 15 Oakley Close, Addlestone, Surrey, United Kingdom, KT15 2LT with company registration number 10730455.
1.2 Interpretation:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its personal representatives, successors and permitted assigns.
1.2.3 A reference to legislation or a legislative provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that legislation or legislative provision.
1.2.4 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.
1.2.5 A reference to writing or written excludes fax but not email.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer must ensure that the terms of the Order and Specification (where applicable) are complete and accurate.
2.3 The Order shall only be deemed to be accepted when Udisys issues a written acceptance of the Order, at which point, and on which date the Contract shall come into existence.
2.4 The Customer waives any right it might have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.5 Any samples, drawings, descriptive matter or advertising produced by or on behalf of Udisys and any descriptions or illustrations contained in Udisys’s catalogues or brochures (whether digital or otherwise) 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.
2.6 A quotation for the Goods given by Udisys shall not constitute an offer. A quotation shall only be valid for a period of 30 days from its date of issue, or as otherwise confirmed in writing by Udisys.
3. GOODS
3.1 The Goods are described on Udisys’s website, the Manufacturer’s product datasheet or similar documentation and as modified by any Specification (where applicable).
3.2 If the Customer requests the Goods to be modified by a Specification, the Customer shall approve any applicable drawings, plans or samples prior to the Goods being manufactured and make payment of the requested engineering fee.
3.3 The Customer shall indemnify Udisys against all Losses incurred by Udisys as a result of any claim that Udisys’s use of the Specification infringes the intellectual property rights of any third party. This clause 3.3 shall survive termination of the Contract.
3.4 Udisys reserves the right to amend the Specification if required by any applicable law or regulatory requirement, and shall notify the Customer in any such event.
4. DELIVERY
4.1 Udisys shall ensure that each delivery of the Goods is accompanied by a shipping note that shows the date of the Order, all relevant Customer and Udisys reference numbers, the type and quantity of the Goods, special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.2 Udisys shall deliver the Goods to the location set out in the Order or such other location as the parties may agree in writing (Delivery Location). Delivery may be made at any time after Udisys notifies the Customer that the Goods have been dispatched or are made available for collection if applicable.
4.3 Delivery is completed on the completion of unloading of the Goods at the Delivery Location or once the Goods are made available for collection if applicable.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. Udisys shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event, a shortage of raw materials or supplies at relevant commodity markets, any delays caused by our suppliers or manufacturers, industrial disputes or the Customer’s failure to provide Udisys with adequate delivery instructions, access, information or any other instructions that are relevant to the supply of the Goods.
4.5 If Udisys fails to deliver the Goods, its liability shall be limited to the value of the Goods to be supplied by Udisys in the specific instalment of the Goods related to the failed delivery. Udisys shall not be liable for any failure to deliver the Goods that is caused by a Force Majeure Event, a shortage of raw materials or supplies at relevant commodity markets, any delays caused by Udisys’ suppliers or manufacturers, industrial disputes or the Customer’s failure to provide Udisys with adequate delivery instructions, access, information or any other instructions that are relevant to the supply of the Goods.
4.6 The Customer shall inspect and test the Goods immediately upon delivery, or collection, in accordance with clause 4.3, and shall immediately notify Udisys of any alleged defect in writing.
4.7 If the Customer fails to take delivery of the Goods within fourteen Business Days of Udisys notifying the Customer that the Goods have been dispatched or made ready for collection, then, except where such failure is caused by a Force Majeure Event or Udisys’ failure to comply with its obligations under the Contract in respect of the Goods:
4.7.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which Udisys notified the Customer that the Goods were ready; and
4.7.2 Udisys shall store the Goods until actual delivery takes place, and shall, without limiting its rights, be entitled to charge the Customer for all related costs and expenses (including insurance).
4.8 If twenty Business Days after the date on which Udisys notified the Customer that the Goods have been dispatched the Customer has not accepted actual delivery of them, Udisys may resell or otherwise dispose of part or all of the Goods and, without limiting its rights and after deducting reasonable costs and expenses related to storage (including insurance) and selling, charge the Customer for any shortfall below the price of the Goods.
4.9 Udisys may deliver the Goods by instalments, which it shall invoice and which the Customer shall pay for separately. Each instalment shall constitute a separate contract. Any delay in delivery of or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4.10 Udisys may deliver excess or short supplies of up to 5% of the quantity of the Goods. If a lower quantity is delivered by Udisys, the Customer shall not be entitled to reject the Goods, but a pro rata adjustment shall be made to the price of the Goods.
5. QUALITY
5.1 Udisys does not provide a warranty in respect of the Goods. The only warranty applicable is the manufacturer or suppliers’ warranty (if any), as confirmed in writing by Udisys (Warranty Period).
5.2 Subject to clause 5.3, if:
5.2.1 during the Warranty Period, the Customer gives notice in writing to Udisys within a reasonable time of discovery that some or all of the Goods do not comply with any applicable warranty as set out in clause 5.1;
5.2.2 Udisys and the Manufacturer (if required) is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by Udisys) returns the Goods to Udisys’s place of business at the Customers Cost,
5.2.4 Udisys shall, at its option, and to the extent that it agrees that the Goods do not comply with the warranty set out in clause 5.1, send the Goods to the Manufacturer for their review. The Manufacturer shall, at its sole option, and to the extent it agrees that such Goods do not comply with the warranty set out in clause 5.1, may, at its discretion (but is under no obligation to), repair or replace the defective Goods, or issue a credit note.
5.3 Udisys shall not be liable for any defect in the Goods’ arising from:
5.3.1 the defect arises because the Customer failed to follow Udisys’s or the Manufacturers oral or written instructions as to the storage, commissioning, installation, use or maintenance of the Goods and / or good trade practice regarding the same;
5.3.2 the defect arises as a result of Udisys (and the Manufacturer) following any drawing, design or specification supplied by or on behalf of the Customer;
5.3.3 the Customer or third party who is not authorised by the Manufacturer, alters or repairs such Goods without the written consent of Udisys;
5.3.4 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
5.3.5 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as expressly permitted in this clause, all warranties, conditions and other terms implied by statute and common law, including the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
5.5 These Conditions shall apply to any repaired or replacement Goods supplied by Udisys.
6. TITLE AND RISK
6.1 Unless otherwise agreed by Udisys in writing, delivery of the Goods shall be made on an Ex Works Incoterms® 2020 basis. The risk in the Goods shall pass to the Customer after the Goods have left the warehouse or factory, or collection from Udisys’ premises as applicable, including in respect of Goods delivered by instalments.
6.2 Title to the Goods shall not pass to the Customer until the earlier of:
6.2.1 Udisys receives payment in full (in cash or cleared funds) for the Goods and any other goods that Udisys has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
6.2.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 6.4.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain separate and readily identifiable as Udisys’s property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
6.3.4 notify Udisys immediately if it becomes subject to any of the events listed in clause 13.1.2 to clause 13.1.4; and
6.3.5 give Udisys such information as Udisys may reasonably require from time to time relating to:
(a) the Goods; and
(b) the Customer’s ongoing financial position.
6.4 Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before Udisys receives payment for the Goods. However, if the Customer resells the Goods before that time:
6.4.1 it does so as principal and not as Udisys’s agent; and
6.4.2 title to the Goods shall pass from Udisys to the Customer immediately before the time at which resale by the Customer occurs.
6.5 At any time before title to the Goods passes to the Customer, Udisys may:
6.5.1 by notice in writing to the Customer, terminate the Customer’s right under clause 6.2.2 to resell the Goods or use them in the ordinary course of its business; and
6.5.2 require the Customer to deliver up all Goods in its possession and control that have not been resold or irrevocably incorporated into another product, and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored, to recover them. The Customer shall procure entry to any such third party’s premises if requested to do so by Udisys.
7. PRICE AND PAYMENT
7.1 The price of the Goods shall be the price set out in Udisys’s written acceptance of the Order.
7.2 Udisys may, by giving notice to the Customer at any time before or after the Goods have been dispatched, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
7.2.1 any factor beyond Udisys’s control (including foreign exchange rate fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
7.2.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification which has been agreed by Udisys in accordance with clause 11.1; or
7.2.3 any delay caused by any instructions of the Customer or failure of the Customer to give or delay by the Customer in giving Udisys adequate or accurate information or instructions.
7.3 The price of the Goods:
7.3.1 excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to Udisys at the prevailing rate, subject to the receipt of a valid VAT invoice; and
7.3.2 excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
7.4 Udisys may invoice the Customer for the Goods on or at any time after the Goods have been dispatched by Udisys.
7.5 The Customer shall pay each invoice submitted by Udisys:
7.5.1 within 14 days of the date of the invoice, unless otherwise agreed in writing by Udisys; and
7.5.2 in full and in cleared funds to a bank account nominated in writing by Udisys, and
time for payment shall be of the essence of the Contract.
7.6 If the Customer fails to make a payment due to Udisys under the Contract by the due date, then without limiting Udisys’s remedies under clause 13, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 7.6 will accrue each day at 5% a year above the Bank of England’s base rate from time to time, but at 5% a year for any period when that base rate is below 0%.
7.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. CONFIDENTIALITY
8.1 Each party undertakes that it shall not at any time, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 8.2.
8.2 Each party may disclose the other party’s confidential information:
8.2.1 to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 8; and
8.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
8.3 No party may use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
9. EXPORT CONTROL AND EMBARGO COMPLIANCE
9.1 The Customer shall be solely responsible for compliance with all applicable export control laws, regulations, and embargoes (including, without limitation, those of the United Kingdom, the European Union, and the United States of America) in relation to any Goods supplied under the contract which are to be exported or otherwise shipped outside of the United Kingdom.
9.2 Without prejudice to the generality of clause 9.1, the Customer shall obtain, at its own cost and expense, all necessary permissions, licences, permits, or other authorisations required for the export, re-export, transfer, or import of the Goods, and shall provide evidence of such authorisations to Udisys upon request.
9.3 Udisys shall have no liability whatsoever for any failure by the Customer to comply with any applicable export control or embargo requirements, and the Customer shall indemnify and hold harmless Udisys against all losses, liabilities, costs, claims, damages, and expenses arising out of or in connection with any breach by the Customer of this clause 9.
10. LIMITATION OF USE
10.1 Unless confirmed in writing by Udisys, the Goods are not made for use in life-sustaining or life-supporting devices and systems, nuclear power plants, for military purposes, application in aeronautics or other purposes where malfunction of the Goods can, within reasonable estimation, lead to life-threatening situations or cause catastrophic consequential damage.
10.2 The Customer shall indemnify Udisys against all Losses for any failure of the Customer comply with clause 10.1.
11. CANCELLATION AND CHANGES TO GOODS
11.1 The Customer shall not be entitled to change, delay or cancel the Goods once the Order has been accepted by Udisys in accordance with clause 2.3, except where Udisys has provided their prior written consent to the order change or cancellation (Order Change or Cancellation).
11.2 In respect of an Order Change or Cancellation, Udisys may invoice the Customer for part or all of the price of the Goods and any other costs incurred by Udisys.
11.3 Goods which are non-standard or ‘NCNR’ and may be identified as such by Udisys in various ways including (but not limited to) in any documentation, in the Specification or other communication) cannot be cancelled or changed.
12. LIMITATION OF LIABILITY
12.1 The limits and exclusions in this clause 12 reflect the insurance cover Udisys has been able to arrange. The Customer is responsible for making its own arrangements for the insurance of any excess liability.
12.2 References to liability in this clause 12 include every kind of liability arising under or in connection with the Contract including liability in contract, tort (including negligence) or otherwise.
12.3 Nothing in the Contract limits any liability for (i) death or personal injury caused by negligence (ii) fraud or fraudulent misrepresentation (iii) breach of the terms implied by section 12 of the Sale of Goods Act 1979, (iv) defective products under the Consumer Protection Act 1987, (v) any liability that cannot legally be limited or (vi) the Customer’s payment obligations under the Contract.
12.4 Subject to clause 12.3, Udisys’ total liability to the Customer shall not exceed the price of the affected Goods within the instalment (where applicable) of the Order to which the claim relates.
12.5 Subject to clause 12.3, the following types of loss are wholly excluded (i) loss of profits (including loss of anticipated savings) (ii) loss of sales or business (iii) loss of agreements or contracts (iv) loss of use or corruption of software, data or information (v) loss of or damage to goodwill and (vi) indirect or consequential loss.
12.6 This clause 12 shall survive termination of the Contract.
13. TERMINATION
13.1 Without limiting its other rights or remedies, Udisys may terminate the Contract with immediate effect by giving written notice to the Customer if:
13.1.1 the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of it being notified in writing to do so;
13.1.2 the Customer 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;
13.1.3 the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
13.1.4 the Customer’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.
13.2 Without limiting its other rights or remedies, Udisys may suspend supply of the Goods under the Contract or any other contract between the Customer and Udisys if the Customer becomes subject to any of the events listed in clause 13.1.2 to clause 13.1.4, or Udisys reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
13.3 Without limiting its other rights or remedies, Udisys may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
13.4 On termination of the Contract for any reason the Customer shall immediately pay to Udisys all of Udisys’ unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, Udisys shall submit an invoice, which the Customer shall pay immediately on receipt.
13.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
13.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
14. FORCE MAJEURE
14.1 A party (Affected Party) shall not be liable for any delay or failure in the performing any of its obligations under this Contract for so long as and to the extent that such delay or failure results from a Force Majeure Event.
14.2 The Affected Party shall notify the other party of the start of a Force Majeure Event.
14.3 If the period of delay or non-performance continues for more than 2 months, Udisys may terminate the Contract by giving not less than 14 days’ written notice to the Customer.
15. GENERAL
15.1 Assignment and other dealings.
15.1.1 Udisys may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
15.1.2 The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of Udisys.
15.2 Entire agreement.
15.2.1 The Contract constitutes the entire agreement between the parties.
15.2.2 Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it has no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
15.3 Variation. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.4 Waiver.
15.4.1 Except as set out in clause 2.4, a waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
15.4.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy does not waive that or any other right or remedy, nor does it prevent or restrict the further exercise of that or any other right or remedy.
15.5 Severance. If any provision or part-provision of the Contract 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 Contract. If any provision or part-provision of the Contract is deemed deleted under this clause 15.5, 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.
15.6 Notices.
15.6.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be 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).
15.6.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address; or
(b) 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.
15.6.3 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.
15.7 Third party rights.
15.7.1 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.
15.7.2 The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.
15.8 Governing law. 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 law of England and Wales.
15.9 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 the Contract or its subject matter or formation.