Extreme Low Energy Entry Terms & Conditions of Sale
THESE TERMS AND CLAUSES APPLY TO ALL CONTRACTS ENTERED INTO BY EXTREME LOW ENERGY (ELe) FOR THE SALE OF THE GOODS.
THESE TERMS CONTAIN LIMITATIONS ON THE DUTIES AND LIABILITIES OF THE PARTIES AND YOUR ATTENTION IS DRAWN TO CLAUSE 14.
In these Clauses the following words have the following meanings:
Receipt of Order: the email or other communication sent by ELe to a Buyer acknowledging receipt of a Buyers offer to Purchase Goods.
Buyer: firm or company who purchases Goods from ELe;
Carrier: the third party which delivers the Goods;
Clause: a clause of these Conditions;
Clauses: these standard Terms and Clauses for the sale of the Goods as set out herin, as amended by ELe from time to time.
Order Acknowledgement: the email or other communication sent by ELe to a Buyer accepting the Buyer’s offer to purchase Goods from ELe;
Contract: any contract entered into between ELe and the Buyer for the sale and purchase of the Goods, incorporating these Conditions;
Goods: any goods agreed in the Contract to be supplied to the Buyer by ELe (including any part or parts of them);
Intellectual Property Rights: inventions, technical information, patents, know-how, registered and unregistered trademarks and service marks (including any trade, brand or business names and any URLs or domain names), registered designs, design rights, copyright and moral rights and topography rights (in each case for the full period thereof and all extensions and renewals thereof), applications for any of the foregoing and the right to apply for or claim priority in respect of any of the foregoing in any part of the world and any similar rights situated in any country;
Packaging Costs: the cost of any packaging used to deliver the Goods;
ELe: means Extreme Low Energy Limited (company registration number 09072667)
ELe D.O.A Policy: means the ELe policy from time to time for claiming that Goods are dead on arrival;
ELe Returns Policy; means the ELe policy from time to time for the return of Goods which have been incorrectly ordered.
ELe Standard Warranty Terms: means the baseline standard ELe hardware warranty from time to time;
Incoterms: means Incoterms 2000 as published by the International Chamber of Commerce.
Group Company: means ELe, any subsidiary or holding company from time to time of ELe, and any subsidiary from time to time of a holding company of ELe.
In these Clauses:
- references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as amended from time to time, consolidated, modified, extended, re-enacted or replaced;
- references to one gender include the other genders and references to the singular include the plural and vice versa as the context admits or requires; and
- headings will not affect the construction of these Clauses.
2 Application of Conditions
2.1 No other terms or Clauses endorsed upon, delivered with or contained in the Buyer’s offer or order to purchase any Goods or contained in any email or other communication from the Buyer will form part of the Contract. Each order for Goods by the Buyer from ELe shall be deemed to be an offer by the Buyer to purchase Goods, subject only to these Conditions.
2.2 These Conditions apply to all Goods available for purchase from ELe and any variation to these Clauses and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of ELe. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of ELe which is not set out in the Contract.
2.3 When ELe receives an order from the Buyer it will issue a “Receipt of Order” by email (or otherwise) notifying the Buyer that ELe has received the order. The Receipt of Order may also advise the Buyer of any clarification required by ELe in relation to the order and it may also reject the order. The Receipt of Order will not constitute an acceptance of the Buyer’s order. When the Buyer’s order has been verified by ELe and any matters which ELe has requested clarification of have been addressed to the satisfaction of ELe then ELe will issue an “Order Acknowledgement” by email (or otherwise) telling the Buyer whether ELe accepts or rejects the order. The Buyer will be required to verify the Order Acknowledgement within 24 hours of its date of creation. If the Buyer does not respond within this 24 hour period then a Contract will be deemed to have been formed on the basis of the Order Acknowledgement.
2.4 No order placed by the Buyer shall be deemed to be accepted by ELe until an Order Acknowledgement is issued by ELe.
2.5 ELe may at its discretion refuse to accept any order. Goods are subject to availability.
2.6 The Order Acknowledgement will provide a target date for shipment of the Goods together with an estimated Shipping time. No guarantee or assurance is given that a particular date will be met. All dates are indicative only.
2.7 A contract will be formed when ELe issues an Order Acknowledgement which accepts the Buyer’s order.
2.8 The Buyer must ensure that the terms of its Order and the Order acknowledgement are complete and accurate.
2.9 Any payment made by the Buyer is given on the basis that no Contract will come into existence until and unless a Buyer receives the Order Acknowledgement from ELe.
2.10 ELe reserves the right to alter the price of Goods at any time and in particular prior to the receipt by a Buyer of the Order Acknowledgement.
3 Description of Goods
3.1 The quantity and product code for the Goods shall be as set out in the Order Acknowledgement.
3.2 All drawings, descriptive matter, specifications and advertising issued by ELe and any descriptions or illustrations contained in any of ELe’s catalogues, brochures or website are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of the Contract.
4 Intellectual Property Rights
4.1 All Intellectual Property Rights in the Goods and in any materials used in the manufacture of the Goods do and shall continue to belong to ELe or a supplier to ELe and the Buyer agrees that it will not infringe any of ELe’s Intellectual Property Rights. In addition, the Buyer agrees to notify ELe as soon as it becomes aware of any third party infringement of s Intellectual Property Rights in relation to the Goods or any of them.
4.2 The Buyer shall leave in position and not cover, deface or erase any notices or other marks (including, without limitation, serial numbers and notices that a trade mark, design, patent or copyright relating to the Goods is owned by ELe or a third party) which may be placed on or affixed to the Goods.
5 Delivery and installation
5.1 In respect of orders for Goods the delivery of which is requested outside the United Kingdom, ELe may refuse to accept such order, or may at its discretion place restrictions or controls on such order to the extent that ELe is required to comply with any regulatory restrictions and /or export controls, which controls have not been satisfied by the Buyer.
5.2 The Buyer acknowledges and agrees that the hardware and software in the Goods, and technology subject to this Contract, are subject to the export control laws and regulations of the United Kingdom, EU, and National legislation. The Buyer will comply with all such applicable laws and regulations.
5.3 The Buyer shall not, without prior appropriate government authorisation, export, re-export or transfer any hardware or software in the Goods, or technology subject to this Contract, either directly or indirectly, to any country subject to a UK Trade Embargo or to any resident or national of any such country, or to any person or entity listed on the “Entity List” or “Denied Persons List” maintained by the Government of the United Kingdom or any other comparable European or local regulation.
5.4 The Buyer will fully indemnify ELe and keep ELe fully indemnified from and against all and any costs, claims, damages, demands and expenses (including legal costs) suffered or incurred by ELe as a consequence of any non-compliance with any relevant export laws or regulations.
5.5 Delivery of the Goods shall take place at the place of business specified in the Order Acknowledgement. The Buyer will be responsible for ensuring that there will be appropriate facilities and personnel to allow for delivery of the Goods at the delivery location and suitably qualified personnel to move all Goods to their place of use or installation.
5.6 ELe shall deliver the Goods during normal business hours applicable to the delivery address. Time for delivery shall not be of the essence, unless otherwise stated in the Order Acknowledgement. Where delivery is requested by the Buyer to a place other than ELe’s place of business then ELe will arrange for delivery either using a Carrier or will itself deliver the Goods. Where a Carrier is used by ELe then delivery will be subject to the Carriers terms and conditions of use from time to time (“Carriers Terms”) and such terms shall be deemed incorporated into and form part of these Conditions. The Carriers Terms will be in addition to the terms of Delivery set out in this Clause 5. In the event of any conflict or inconsistency between the Carriers Terms and these Conditions, then the Carriers Terms will prevail. The Carriers Terms may be requested from ELe.
5.7 Unless otherwise stated by ELe, where applicable, the cost of delivery is as stated in the Order Acknowledgement and will be added to the total price and shown separately. Unless it is agreed that the Buyer shall be responsible for carriage of the Goods, ELe shall arrange for the delivery of the Goods by the Carrier at the Buyer’s cost.
5.8 Except in the case of carriage to a relevant port or airport, ELe or the Carrier shall deliver the order to the main entrance of the delivery address. Any such deliveries carried into the delivery address shall only be made if the Buyer and the driver consent to this and will be at the Buyers risk. Where delivery is made to an airport it will be made to the required storage area where upon risk in the Goods will pass to the Buyer. In the case of delivery to a port, delivery will be made in accordance with the relevant Incoterms.
5.9 Risk in the Goods will pass to the Buyer in accordance with the relevant Incoterms specified in the Order Acknowledgement (e.g. CFR – when the Goods pass over the ship’s rail and CPT – when the Goods are delivered to the Carrier or EXW – when the Goods are made available for delivery at specified ELe premises). In the case where ELe has agreed to arrange for the carriage of the Goods, then ELe will repair or replace free of charge any Goods that are damaged in transit provided that the Buyer notifies the Carrier and/or ELe in writing of such damage within three days of delivery or deemed delivery. ELe’s liability under this Clause is limited to the amount ELe is able to recover from the Carrier, except in relation to death or personal injury caused by ELe’s negligence or fraudulent misrepresentation. Where the Buyer arranges for the use of a Carrier it will be responsible for the carriage of the Goods.
5.11 Subject to the other provisions of these Conditions ELe will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by ELe’s negligence or the negligence of its Carrier). ELe shall use its reasonable endeavours to notify the Buyer of and reasons for such delay as soon as reasonably possible.
5.12 If for any reason the Goods conform to the Order Acknowledgement but the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or ELe (or its Carrier) is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations then:
- risk in the Goods will still have passed to the Buyer (including for loss or damage caused by ELe’s negligence) if it has not already done so;
- the Goods will be deemed to have been delivered; and
- ELe may store the Goods until the Buyer takes possession of them whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
5.13 ELe will not install the Goods unless otherwise agreed in writing. If installation is required the Buyer will only use an ELe certified installer to install any Goods except where ELe specifically waives this requirement in writing, at its sole discretion, having been fully satisfied that an appropriately trained installer is used instead. If the parties so agree that ELe will install the Goods then, installation of the Goods shall be governed by ELe’s System Installation Guidelines as revised from time to time. Unless the Order Acknowledgement provides that ELe has agreed to install the Goods, ELe accepts no liability for any loss, damage or injury of whatsoever nature caused by the installation of the Goods.
5.14 The Buyer shall procure that the installer of the Goods completes the ELe System Installation Checklist, as updated from time to time to include, but not be limited to, the product serial number, product details, end user’s name, address and email, the installation date and the installation engineer’s name or company name provided that such information shall only be utilised by ELe for warranty and product liability purposes.
5.15 The Buyer will provide at its expense adequate and appropriate equipment and manual
labour for accepting the Goods upon delivery. Where a Carrier is used by ELe to deliver the Goods the Buyer will comply with all relevant terms and Clauses applicable to delivery of the Goods as set out in the Carrier’s Terms, including but not limited to the suitability or adequacy of the delivery address.
6.1 The quantity of any consignment of Goods as recorded by ELe upon despatch from ELe’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
6.2 ELe shall not be liable for any non-delivery of Goods (even if caused by ELe’s negligence) unless written notice is given to ELe within 7 days of the date when the Goods would in the ordinary course of events have been received.
6.3 Any liability of ELe for non-delivery of the Goods, and the Buyer’s sole and exclusive remedy for such non-delivery, shall be limited in ELe’s discretion to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
7 Risk and title of Goods
7.1 The Goods are at the risk of the Buyer from either the time of delivery pursuant to Clause 5 or the time when title passes pursuant to the Contract, whichever is earlier.
7.2 TITLE TO THE GOODS SHALL NOT PASS TO THE BUYER UNTIL ELE HAS RECEIVED FULL PAYMENT (IN CASH OR CLEAR FUNDS) OF:
ALL SUMS PAYABLE FOR SUCH GOODS; AND
ALL OTHER SUMS WHICH ARE OR WHICH BECOME DUE TO ELE FROM THE BUYER ON ANY ACCOUNT FROM TIME TO TIME.
7.3 Until title of the Goods has passed to the Buyer, the Buyer must:
- hold the Goods on a fiduciary basis as ELe’s bailee;
- whilst the Goods are in the possession or under control of the Buyer, store the Goods (at no cost to ELe) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as ELe’s property;
- not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
- use its best endeavours to keep the Goods secure and safe from harm or theft;
- maintain the Goods in satisfactory condition and keep them insured on ELe’s behalf for their full price against all risks to the reasonable satisfaction of ELe. On request the Buyer shall produce the policy of insurance to ELe
- not allow any charge or other security to be created over the Goods; and
- inform ELe immediately in the event of any attempt by a third party (such as a liquidator) to interfere with or take possession of the Goods.
7.4 The Buyer may not resell the Goods before title has passed to it.
7.5 The Buyer grants ELe, its agents and employees the authority to enter any premises where the Goods are or may be stored at any time in order to check compliance with this Clause 7 and to inspect the Goods
7.6 Nothing in this Contract prevents ELe from bringing an action for the price of the Goods under the English Sale of Goods Act 1979.
8.1 The Buyer shall not assign to a third party any rights or obligations of the Buyer regarding the Contract without ELe’s prior written consent not to be unreasonably withheld, provided that the assignee meets ELe’s reasonable requirements for credit worthiness and on condition that the assignee agrees with ELe to comply with the terms of the Contract.
8.2 ELe may assign, wholly, or in part, its rights and obligations under the Contract to another entity being a company which is a ELe Group Company.
9.1 The price list currently used by ELe shall be transmitted by ELe to the Buyer upon request
9.2 The price for the Goods shall be the price set out in the Order Acknowledgement subject only to any inadvertent technical mistake which ELe shall not be liable for. The price shall exclude any and all related sales, import and customs taxes and duties of whatever kind or any other sums levied by any third party on the sale, which shall be the responsibility of the Buyer. ELe reserves the right to terminate the Contract with the Buyer if ELe is refused authority for payment or reasonably believes that payment will be refused at any stage. Any questions about the Buyer’s order of the Goods should be directed to ELe using the contact details included in the Order Acknowledgement.
10.1 Unless otherwise stated, all shipping and handling costs will be charged to the Buyer in addition to the price for the Goods. If the Buyer makes a request for packaging over and above what ELe considers being necessary for the safe carriage of goods, ELe reserves the right to charge the Buyer a separate charge relating to the Packaging Costs of the Goods.
10.2 All packaging shall be non-returnable unless otherwise stated by ELe or required by applicable laws and regulations. The Buyer will be responsible (at its own cost) for the safe disposal of all and any packaging items in accordance with the laws of the county in which the Goods are delivered.
- Compliance with Laws
11.1 The Buyer will be responsible for the safe and proper disposal of any goods in situ at the delivery address which are to be replaced by the Goods in accordance with all applicable laws and regulations (which in the case of Existing Goods in the European Union will include but not be limited to the Waste Electrical and Electronic Equipment Directive and associated laws and regulations adopted countries of the European union and the Batteries and Accumulators Directive).
12.1 Payment by a Buyer can be made by any of the methods acceptable to Ele which shall be updated from time to time. Goods will not be shipped until payment is received in cleared funds by ELe for the price of all Goods (as set out in the Order Acknowledgement) and any associated handling, shipping and packaging costs.
12.2 The price for the Goods, packaging, shipping and handling costs will be payable in the invoiced currency (which unless otherwise agreed will be the currency stated in the Order Acknowledgement). The Buyer will bear any bank charges incurred as a result of the Buyer’s selected method of payment.
12.3 Where an invoice is issued by ELe; the Buyer shall make payment on invoice unless otherwise agreed in writing. Invoices will be raised by ELe when to Goods are dispatched from or made available at the relevant ELe facility.
13 Returns, Repairs & Warranty
13.1 If the Buyer considers that the Goods are faulty then the Buyer must notify ELe within 10 working days of the date of delivery and otherwise comply with the terms of the ELe D.O.A Policy from time to time. Time will be of the essence for the notification to be given by the Buyer to ELe pursuant to this sub clause. The ELe D.O.A Policy may be accessed on the ELe website.
13.2 In the event that the Buyer considers that an order has been inadvertently placed then it must notify ELe within 30 days of the date of receipt of the Goods and otherwise comply with the ELe Returns Policy. Time will be of the essence for the notification to be given by the Buyer to ELe pursuant to this sub-clause. The Returns Policy is operated at the discretion of ELe. The ELe Returns Policy may be accessed using the following link.
13.3 Any repairs unable to be carried out remotely will be carried out at a designated ELe facility as notified by ELe from time to time. Where applicable, the Buyer will arrange and accept liability for return of Goods, unless prior agreement has been given in writing by ELe.
13.4 The warranty terms applicable to the Goods depend upon the country of delivery. The ELe Standard Warranty Terms at the date of the Order Acknowledgement will apply to the Goods ordered by the Buyer providing the conditions in clause 13.5 below are met. The ELe Standard Warranty Terms may be accessed on the ELe website. The ELe Standard Warranty Terms will be deemed to be incorporated into and form part of these Conditions.
13.5 If the Buyer is purchasing the Goods for onward sale it shall ensure that the end users are made aware of the ELe Standard Warranty Terms including, but not limited to, the requirement for the Goods to be registered in order to gain any additional benefits over and above the baseline warranty which might be offered from time to time. The Buyer shall not be entitled to amend the ELe Standard Warranty Terms If the Buyer purports to amend the terms of the ELe standard warranty or offers separate warranty services for the Goods then the Buyer acknowledges that it does so at its own risk.
13.6 The Buyer shall promptly provide all reasonable support and assistance requested by ELe in case of a product recall or safety related issue regarding the Goods.
13.7 All software is supplied in accordance with the applicable software licence agreement.
14 Limitation of liability
14.1 Subject to Clause 13, the following provisions set out the entire financial liability of ELe (including any liability for the acts or omissions of its employees, agents and subcontractors, including any Carrier) to the Buyer in respect of:
- any breach of these Conditions; and
- any representation, statement or tortious act or omission, including negligence, arising under or in connection with the Contract.
14.2 All warranties, Clauses and other terms implied by statute or common law (save for the Clauses implied by section 12 of the Sale of Goods Act 1979 or similar provisions in other legislation) are, to the fullest extent permitted by law, excluded from the Contract.
14.3 Nothing in these Clauses excludes or limits the liability of ELe for death or personal injury caused by ELe’s negligence, or fraudulent misrepresentation or concealment.
14.4 Subject to Clauses 14.2 and 14.3:
(a) ELe’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the smallest of the following;
- the actual amount of any loss or damage suffered by the Buyer;
- a sum equal to the current value of the Goods at the time when the Buyer’s claim arises; or
- the amount paid to ELe for the Goods in relation to which the Buyer makes a claim; and
(b) ELe shall not be liable to the Buyer for any loss of profit, loss of business, depletion of goodwill or otherwise), costs, claims, demands or expenses (in each case whether direct or indirect) or for any other indirect or consequential loss whatsoever (howsoever caused) which arise out of or in connection with the Contract, including, but not limited to, the Goods and all workmanship of ELe whether pursuant to Clause 13 or otherwise.
14.5 The Buyer must familiarise itself and any relevant personnel with the operating instructions and safety advice provided by ELe. ELe will not be liable to the extent that any loss or damage arises because of incorrect use of the Goods.
15 Force Majeure
15.1 ELe reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of ELe including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials provided that, if the event in question continues for a continuous period in excess of 180 days, either Party shall be entitled to give notice in writing to the other to terminate the Contract.
16.1 Each right or remedy of ELe under the Contract is without prejudice to any other right or remedy of ELe whether under the Contract or not.
16.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly invalid or unenforceable it shall to the extent of such invalidity or unenforceability be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
16.3 Failure or delay by ELe in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
16.4 Any waiver by ELe of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
16.5 Neither party intends that any term of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
16.6 THE FORMATION, EXISTENCE, CONSTRUCTION, PERFORMANCE, VALIDITY AND ALL ASPECTS OF THE CONTRACT SHALL BE GOVERNED BY ENGLISH LAW AND, SUBJECT TO CLAUSE 16.7, THE PARTIES SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE ENGLISH COURTS.
16.7 IF ANY DISPUTE ARISES OUT OF THE CONTRACT, THE PARTIES WILL FIRST ATTEMPT TO SETTLE IT BY MEDIATION IN ACCORDANCE WITH THE CENTRE FOR DISPUTE RESOLUTION (CEDR) MODEL MEDIATION PROCEDURE. THE PARTY FOUND TO BE IN DEFAULT WILL PAY THE ASSOCIATED COSTS FOR SUCH MEDIATION. NEITHER PARTY TO THE CONTRACT SHALL SEEK TO ENFORCE ITS RIGHTS VIA THE COURTS UNTIL AT LEAST 42 DAYS FROM THE INITIATION OF THE MEDIATION, SAVE WHERE NECESSARY (i) TO PREVENT A LIMITATION PERIOD FROM EXPIRING, OR (ii) TO SEEK INJUCTIVE OR OTHER EQUITABLE RELIEF.
16.8 The Contract constitutes the entire understanding between the parties with respect to the subject matter of the Contract and supersedes all prior agreements, negotiations and discussions between the parties relating to it. In particular nothing in the Contract shall be construed as making the parties partners or joint ventures or render either party liable for any of the debts or obligations of the other party. Nothing in this Clause shall exclude any liability for fraudulent misrepresentation or concealment.
16.9 In the event of any conflict arising within any Clause relating to other documentation arising from transactions under this Contract, unless otherwise expressly agreed in writing by ELe, these Conditions shall prevail.
17.1 All communications made between the parties about the termination of any Contract or any pending or threatened legal proceedings or allegation of breach of contract must be in writing and delivered by hand or by first class post or by international courier: in case of communications to ELe) to its registered office or such changed address as shall be notified to the Buyer by ELe, marked for the attention of the Company Secretary; or
in the case of the communications to the Buyer to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to ELe by the Buyer.
17.2 Communications shall be deemed to have been received:
- if sent by pre-paid first class post, 2 days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting);
- if delivered by hand, on the day of delivery;
- if sent by international courier, when signed for by a member of staff of ELe.
17.3 Any communications concerning any matter apart from those specified in Clause 17.1 above will be by email or telephone.
For Buyers in France
1.1. The penultimate sentence of Clause 5.9 will be deleted.
1.2. Clause 7.2 will be deleted and replaced with the following new Clause:-
“7.2 Title to the Goods shall not pass to the Buyer until ELe has received full payment for the price (including taxes and incidental costs) payable for such Goods from time to time”
1.3. A new Clause 7.7 will be added to read as follows:-
“7.7 The Buyer undertakes to inform ELe of any receivership proceedings brought against the Buyer and to pay all the sums due in connection with the Contracts concluded with ELe. In such a case, ELe will be entitled to proceed, in compliance with the applicable laws and regulations with the recovery of the Goods retained by the Buyer subject to receivership proceedings.”
- For Buyers in Germany
2.1. The penultimate sentence of Clause 5.9 will be deleted
2.2. Clauses 6.2 and 6.3 will be replaced by the following new Clause 6.2:
6.2 “ELe shall not be liable for any non-delivery of Goods (if such non-deliveries were not caused by ELe’s intent or gross negligence) unless written notice is given to ELe within 7 days of the date when the Goods would in the ordinary course of events have been received, in which case the liability of ELe shall be limited in ELe’s discretion to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.”
2.3. Clauses 14.1 to 14.4 inclusive will be deleted and replaced with the following new Clauses 14.1 to 14.4 inclusive.
14.1 Subject to Clause 13, the following provisions set out the entire financial liability of ELe (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these Conditions; and
(b) any representation, statement or tortious act or omission, including negligence, arising under or in connection with the Contract.
14.2 Nothing in these Conditions excludes or limits the liability of ELe for death or personal injury, for damages caused by wilful misconduct or by fraudulent misrepresentation or concealment, for any violations of material contractual obligations caused by gross negligence, and in connection with product liability laws if applicable.
14.3 ELe’s liability for a violation of non-material contractual provisions caused by gross negligence and for a violation of material contractual obligations caused by slight negligence is limited to foreseeable and typical damages.
14.4 All further liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract of ELe is excluded.
- For Buyers in the U.S.A
3.1 Clause 14.2 will be deleted and replaced with the following new Clause 14.2
14.2 ELe disclaims all implied warranties of merchantability, fitness and non-infringement.
3.2 Clauses 14.1 and 14.3 to 14.5 will be deleted and replaced with the following new Clauses:
“14.1 Subject to Clause 13.1 the following provisions set out the entire financial liability of ELe (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
14.1.1 any breach of these Conditions; and
14.1.2 any representation, statement or tortious acts or omission, including negligence, arising under or in connection with the Contract.
14.3 Nothing in these Clauses excludes or limits the liability of ELe for death or personal injury, for damages caused by wilful misconduct or by fraudulent misrepresentation or concealment, for any violations of material contractual obligations caused by gross negligence, and in connection with product liability laws if applicable.
14.4 ELe’s liability for a violation of non-material contractual provisions caused by gross negligence and for a violation of material contractual obligations caused by slight negligence is limited to foreseeable and typical damages.
14.5 All further liability in contract, tort (including negligence or breach of statutory duty). Misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Contract of ELe is excluded.