Terms and conditions
In these conditions, unless the context requires otherwise:
1.1. ‘Conditions’ means these Terms and Conditions;
1.2. ‘Contract’ means the contract between Enix Energies and the Customer for the sale and purchase of the Goods coming into existence as referred to in clause 2.4 below;
1.3. ‘Customer’ means the person who buys or agrees to buy the Goods from Enix Energies;
1.4. ‘Customised Goods’ means Goods (as defined below) which have been produced or adapted by or on behalf of Enix Energies to a specification requested by the Customer
1.5. ‘Delivery Date’ means the date specified by Enix Energies as the target date for delivery of the Goods to the Customer;
1.6. ‘Goods’ means the articles/goods described in the Order Acknowledgement and/or any other articles/goods which Enix Energies agrees to sell to the Customer together with any work and/or services which Enix Energies may agree to perform for the Customer in any way relating to the articles/goods which shall include but not be limited to work and/or services in producing customised goods;
1.7.“Order Acknowledgement” means the form of order acknowledgement or order acceptance issued in any manner by Enix Energies to the Customer.
1.8.‘Price’ means the price for the Goods (and any associated services, including by way of example only, delivery, carriage, packing but only where any of the same are expressly shown in the Quotation or Order Acknowledgement to be included in the Price) as set out in the Quotation or, if none, then in the Order Acknowledgement, as the same may be varied either in accordance with the provisions of the Contract or by agreement in writing between the Parties;
1.9.‘Quotation” means the quotation made by Enix Energies to the Customer, for the supply of Goods however that quotation may be given;
1.10.‘Technical Information’ means technical and technological information, specifications, drawings, surveys plans and documentation together with models, samples, components and any and all related information;
1.11.‘Warranty’ means the warranty granted by Enix Energies to Customer in relation to Goods as set out in Clause 9.1.
2.1 The Conditions shall apply to all contracts for the sale or supply of Goods by Enix Energies to the Customer to the exclusion of all terms and conditions of the Customer including any terms or conditions which the Customer may purport to apply under any purchase order, confirmation of order or similar or other document.
2.2 In the case of sales from Enix Energies’ catalogue the Customer warrants to Enix Energies’ that it is buying the Goods in the course of its business.
2.3 A quotation if any is given by Enix Energies is only an invitation to treat. If the Customer wishes to purchase Goods from Enix Energies the Customer shall issue an order to Enix Energies which Enix Energies may, but is not obliged, to accept. All orders from the Customer for Goods shall be deemed to be offers by the Customer to purchase Goods pursuant and subject to the Conditions. Enix Energies will not accept any order from the Customer unless the price specified in the order is Enix Energies’ correct then current price for the Goods concerned.
2.4 No binding contract shall exist between Enix Energies and Customer with respect to the sale and purchase of Goods until Enix Energies has received Customer’s formal purchase order and Enix Energies has issued an Order Acknowledgement, or despatched the relevant Goods, to the Customer.
2.5 Without prejudice to any other acceptance by the Customer of the Conditions or the applicability of the Conditions as stated herein acceptance of the Goods by the Customer shall be deemed conclusive evidence of the Customer’s acceptance of the Conditions.
2.6 Any variation or amendment or purported variation or amendment to the Contract, other than in accordance with the terms of the Contract shall be inapplicable unless expressly agreed in writing and expressly agreed on the part of Enix Energies.
2.7 Enix Energies shall be entitled to amend or replace these Conditions from time to time by either sending the new or amended conditions to the customer or posting the new or amended conditions on its website.
- Technical Information
3.1 All Technical Information provided by Enix Energies whether specifically provided to the Customer or generally published by Enix Energies remains the property of Enix Energies and the Customer is entitled to use any such information only for the purpose of evaluating the products described in such information prior to selection for purchase. The Customer may not use such Technical Information for any other purpose or publish the same in any way.
3.2 Enix Energies reserves the right to make any changes to the Goods and the Technical Information which it provides about the Goods that it considers appropriate from time to time, without prior notice to the Customer even after receipt of the Customer order provided in this case that such change shall not affect the essential features of the Goods. In the event of any such change Enix Energies is not obliged to manufacture goods to the previous specification.
3.3 Where these Conditions are printed in an Enix Energies catalogue the catalogue remains the property of Enix Energies. Reproduction from the catalogue of any full or partial text, drawing, photo or table is strictly prohibited.
3.4 Where the Customer provides Technical Information for the use of Enix Energies in connection with Customised Goods Enix Energies shall be entitled to assume that all such information is complete and accurate. Enix Energies shall not be liable for any defect of any sort in any Goods which arises out of any error or omission in or from such Technical Information.
- Property and Risk
4.1 Risk of damage to or loss of the Goods shall pass to the Customer upon the Goods being delivered to the Customer.
4.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of the Contract or that the Goods may have become affixed or attached to any land or building, the property in and all legal and equitable title to the Goods shall not pass to the Customer until Enix Energies has received in cash or cleared funds payment in full of the Price of the Goods together with the applicable VAT (or other tax or duty payable).
4.3 Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods to the order of the Enix Energies as Enix Energies’ fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Enix Energies’ property. The Customer shall be entitled to use the Goods whether in the ordinary course of its business or otherwise only after the Customer has accepted the Goods in accordance with the provisions of the Contract.
5.1 The price is quoted on an ex works basis unless otherwise stated in the Order Acknowledgement.
5.2 The delivery charge payable by the Customer is in the case of website sales, set out in the website and in the case of catalogue sales will be specified in the Quotation or in the Order Acknowledgement.
5.3 The Price quoted is exclusive of VAT (and/or other similar tax or duty) which shall be due from and payable by the Customer at the rate ruling on the date of the Enix Energies’ invoice.
- Payment condition
6.1 Payment in cleared funds with order will be requested for new catalogue trade accounts/customers. Any Customer without a trade account with Enix Energies will be required to pay the whole of the amount of the Price together with VAT to Enix Energies by credit or debit card before Enix Energies shall have any obligation to despatch any Goods to the Customer.
6.2 Enix Energies is entitled to invoice the Customer on despatch of the Goods concerned.
6.3 Enix Energies’ invoices to any Customer with a trade account with Enix Energies are payable only by cheques or BACS.
6.4 Other than when 6.1 applies the Price plus VAT in connection with catalogue sales shall be payable by the Customer in full within 30 days of the date of the Enix Energies invoice. Time for payment of the Price (together with VAT thereon) shall be of the essence.
6.5 In any case where the Customer fails to pay when due Enix Energies reserves its rights to claim interest and compensation for late payment under the Late Payment of Commercial Debts (Interest) Act 1998 and the Late Payment of Commercial Debts Regulations 2002.
- Delivery and transportation
7.1 The delivery is considered complete as soon as the Goods are handed over to the Customer, or the Customer’s carrier.
7.2 The Goods are only insured during transportation to the Customer when the Customer requests that they are insured and Enix Energies agrees in writing to make such arrangements which will always be at the Customer’s expense.
7.3 It is the responsibility of the Customer to inspect the Goods carefully on delivery and to note any shortages, damage or visible defects on the delivery note before signing it. In addition the Customer must notify Enix Energies in writing to be received by Enix Energies within three working days of delivery if there are any shortages, damage to or defects in the Goods which should be apparent from careful inspection. If the Customer fails to sign the delivery note or does not so notify Enix Energies within such period the Goods shall be deemed to be free from any such damage, defects or shortages and to have been accepted by the Customer.
7.4 Where the Customer requests written confirmation from Enix Energies that the Goods have been despatched Enix Energies will supply such confirmation but will be entitled to charge the Customer £15 plus VAT for giving such confirmation and the Customer will pay such charge forthwith.
Delivery Lead time
8.1 The Delivery Date is given as an indication only, without commitment on the part of Enix Energies. Where delivery is delayed beyond the Delivery Date this does not give the Customer the right to cancel its order.
8.2 In the event of the Customer wishes to postpone any Delivery Date and Enix Energies agrees to such postponement there will be no change to the invoicing conditions and dates initially anticipated nor to the obligation of the Customer to pay on time in relation to such invoice.
- Warranty and liability
9.1 Customised Goods and Goods manufactured by Enix Energies are sold with the benefit of the following warranty (the Warranty). Enix Energies warrants that the Goods will be free of material defects resulting from errors in the design or manufacture of the Goods or the use by Enix Energies of defective materials in the Goods in each case for a period of 12 months from the date upon which the Goods were delivered to the Customer under the contract concerned.
9.2 The Warranty is given by Enix Energies subject to the following conditions:
9.2.1 Enix Energies shall be under no liability in respect of any defect in the Goods arising from any defective or insufficient Technical Information, drawing, design or specification supplied by the Customer;
9.2.2 Enix Energies shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow Enix Energies’ instructions, misuse (which includes any use of the Goods for a purpose ther than that for which it was designed) or alteration or repair of the Goods without Enix Energies’s approval;
9.2.3 Enix Energies shall be under no liability under the Warranty (or any other warranty, condition or guarantee) whilst and for so long as the Customer is in default of any of its payment obligations to Enix Energies under the Contract;
9.2.4 where Enix Energies agrees to carry out work on the Goods in the belief that the work is necessitated by some cause covered by the Warranty and it is discovered that the cause is in fact one not covered by the Warranty then Enix Energies shall be entitled to charge the Customer in full for the work carried out by it at Enix Energies’ then current rate for the sale of the relevant labour and for the materials used by it in connection with such work and the Customer shall pay for the same, together with VAT thereon at the applicable rate, forthwith upon demand by Enix Energies. Where the Goods were not manufactured by Enix Energies, Enix Energies will pass to the Customer on request the benefit of any warranty given by the manufacturer of the Goods concerned.
9.3 Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute, trade practices or common law are excluded to the fullest extent permitted by applicable law.
9.4 Provided that nothing in the Contract shall have the effect of excluding or restricting the liability of Enix Energies in respect of any kind of loss damage or liability which cannot or must not be excluded or limited under English law Enix Energies shall not be liable to the Customer, or to any third party, for:
9.4.1 loss of profits,
9.4.2 loss of production
9.4.3 loss of turnover,
9.4.4 loss of contracts
9.4.5 any other economic loss whatsoever;
9.4.6 any indirect, special or consequential loss and/or damage (whether relating to loss of profit or otherwise);
9.4.7 costs, expenses, other claims for compensation whatsoever relating in any way to the matters referred to in 9.4.1 to 9.4.6 (inclusive) above, suffered or incurred by the Customer or any third party in any way arising out of any act or omission of Enix Energies or its employees or agents whether for breach of statutory duty or in contract (including any implied term) tort, including negligence, negligent misrepresentation and misstatement or otherwise under or in connection with the Goods, the Contract or under any other agreement relating to the Goods or any part or based on any claim for indemnity or contribution. The foregoing shall not relieve Enix Energies from the obligation to remedy defects in the Goods under and subject to the terms of the Warranty .
9.5 Without prejudice to clause 9.4 the entire liability of Enix Energies to the Customer under or in connection with the Contract save in respect of any kind of loss damage or liability which cannot or must not be limited under English law shall not exceed the Price of the Goods, except as and to the extent expressly provided in the Conditions.
9.6 Enix Energies and the Customer hereby expressly agree that the exclusions and limitations of liability set out in the Conditions are fair and reasonable taking into account the nature of the goods and services to be supplied by Enix Energies to the Customer under the Contract, the Price payable by the Customer to Enix Energies under the Contract, the obligations of Enix Energies under the Warranty, and the cost of existing and future insurance cover to the parties.
- Force Majeure
10.1 Enix Energies shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of Enix Energies’ obligations in relation to the Goods, or otherwise under the Contract if the delay or failure was due to any cause beyond Enix Energies’ reasonable control.
11.1 Without prejudice to the responsibilities of Enix Energies under the Warranty Enix Energies may be willing to accept the return of Goods provided that the Customer complies with the following clauses 11.2 – 11.4.
11.2 Enix Energies must receive an express return request from the Customer at the latest 15 working days after delivery by contacting the Enix Energies quality control service on 01215068609 or by e-mail at email@example.com. The Customer will receive a number and a non-compliance form on the terms of return by fax or post, which must be enclosed in the package with the Goods concerned.
11.3 All packages must only be sent to the logistics centre Enix Energies – Unit 20 – Monkspath Business Park Shirley B90 4NZ, – accompanied by the completed noncompliance form.
11.4 The Goods can only be returned if they are in brand new condition in their original packaging, the packaging costs and the return transportation costs are the responsibility of the Customer.
11.5 Customised Goods which are not defective cannot be returned.
11.6 On receipt of returned Goods which comply with the requirements of this clause 11 Enix Energies will credit 75% of the invoice Price for such goods, together with VAT thereon to the Customer in full satisfaction of the re purchase of the Goods.
11.7 Where the Goods supplied by Enix Energies are shown to the reasonable satisfaction of Enix Energies not to be the Goods ordered by the Customer then Enix Energies will credit 100% of the invoice Price for such goods, together with VAT thereon to the Customer.
11.8 Where defective Goods which have been returned to Enix Energies it shall at its sole discretion either refund 100% of the Price and VAT or rectify the Goods under and subject to the terms of the warranty or the warranty given by the manufacturer concerned as applicable.
Any disagreement or claim arising out of or relating to the Goods, the Contract or the breach, interpretation, termination or validity of any provision of the Contract, other than one which relates to the non payment or alleged non payment of the Price or other liquidated amount payable by the Customer to the Supplier under the Contract, which cannot be settled between the Parties within thirty days of being raised by either Party in a written notice to the other Party shall be settled by arbitration by a single arbitrator in accordance with the Arbitration Act 1996 or any statutory modification or re-enactment of the same. The identity of the arbitrator shall be agreed between the Parties and in default of agreement within 10 Working Days of the expiry of the period of thirty days referred to above shall be appointed by the President of the Law Society of England then in office upon the application of either Party. The decision of the arbitrator shall be final and binding on the Parties. The place of arbitration shall be Birmingham. The arbitrator shall have full power to order a Party to provide security for costs regardless
of whether the High Court would have power in the circumstances to make such an order. Judgement upon any award rendered by the arbitrator may be entered in any court of competent jurisdiction. All notices to be given in connection with the arbitration shall be in writing and if for the Customer shall be sent to the delivery address and if for Enix Energies shall be sent to Unit 2 Focus Park Ashbourne Way – Solihull B90 4QU12. . The Contract and any and all disputes alleged to relate to it or arise out of it shall be governed by the laws of England, and the Customer agrees to submit to the non-exclusive jurisdiction of the English courts.