Terms and Conditions of Sale

1. Interpretation

   1. In these Conditions: “Buyer” means the person who accepts a quotation of the Seller for the provision of the Specified Services or whose order for the Specified Services is accepted by the Seller; “Goods” means the goods which the Seller is to supply as part of the Specified Service;

      “Seller” means Tire Monitor System Limited (registered in England under number 3306387) whose trading office is at West Road House, West Road, Buxton, Derbyshire, SK17 6HF; registered office is at West Road House, West Road, Buxton, Derbyshire, SK17 6HF; “Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller;

      “Contract” means the contract for the provision of the Specified Services;

      “Specification” means the specification for the Specified Services as approved by the Buyer in accordance with this Contract;

      “Specified Service” means the Goods and services to be provided by

      the Seller to the Buyer as detailed in a quotation; “Equipment” means development kit, test gear, tooling and production aids.

      “Writing” includes telex, e-mail, cable, facsimile transmission and comparable means of communication.

   2. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
   3. The headings in these Conditions are for convenience only and shall not affect their interpretation.

2. Basis of the sale

   1. The Seller shall provide the Specified Service to the Buyer in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
   2. No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
   3. The Seller’s employees or agents are not authorised to make any representations concerning the Specified Service unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowledged that it does not rely on any such representations which are not so confirmed.
   4. Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Specified Service which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
   5. Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
   6. These Conditions shall apply to the sale and supply by the Seller of all Goods purchased by the Buyer and these Conditions shall govern the Contract to the exclusion of any other terms and conditions introduced or submitted by the Buyer.

3. Orders and specifications

   1. No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’s authorised representative.
   2. The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order including the Specification) and for giving the Seller any necessary information relating to the Specified Service within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
   3. The Specified Service is to be provided in accordance with the Specification. On submission of a specification by the Seller to the Buyer, the Buyer shall, within such period as agreed between the parties, approve or reject the specification. In the event that the Buyer, acting reasonably, rejects the specification, then the Seller shall resubmit the specification within such reasonable timescale as agreed between the parties. In the event that the parties are unable to agree the terms of the specification then Condition 3.7 shall apply.
   4. All specifications, drawings, designs and technical description, and all information and ?know-how? whatsoever supplied by one party (the ‘Supplying Party‘) to the other (the ‘Receiving Party‘) shall remain the Supplying Party?s copyright and property and shall at all time be treated by the Receiving Party as confidential and shall not without prior written consent of the Supplying Party be used by the Receiving Party except for the purposes of the Contract.
   5. In the event that the Buyer has provided the Seller with a Specification, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Specification.
   6. The Seller reserves the right to make any changes in the Specification of the Specified Service which are required to conform with any applicable statutory or EC requirements and which do not materially affect their quality or performance.
   7. In the event that the Buyer wishes to cancel an order, it may only do so with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.

4. Price

   1. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
   2. The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Specified Service to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or the Specification for the Specified Service which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
   3. Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis (the ‘Price‘).
   4. The Seller reserves the right to charge the Buyer for the cost of carriage and/or other expenses incurred by the Seller in relation to the delivery for the Specified Services to the Buyer (‘Additional Charge‘).
   5. The Price and any other charges, quotations or estimates given by the Seller shall be exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.

5. Terms of payment

   1. The Seller shall be entitled to invoice the Buyer for the Price and Additional Charge (or part thereof) at:
      1. The point of risk transfer in accordance with Condition 8.1 or
      2. Such time as specified within any payment plan detailed within the quotation provided by the Seller to the Buyer in accordance with Condition 2.1 above.
   2. The Buyer shall pay the Price and any Additional Charge without deduction within 30 days of the date of the Seller’s invoice or such other period as agreed in writing between the parties, and the Seller shall be entitled to recover the Price, notwithstanding that delivery may not have taken place and the property in the Specified Service has not passed to the Buyer. Receipts for payment will be issued only upon request.
   3. The time of payment of the Seller?s invoices shall be of the essenceof the Contract.
   4. If the Buyer fails to make any payment on the due date, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
      1. cancel the contract or suspend any further deliveries to the Buyer;
         
      2. appropriate any payment made by the Buyer to such of the Specified Services (or the services supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
         
      3. exercise its right under the Late Payment of Commercial Debts Act 1988 to charge interest on outstanding invoices at 8% above the base rate of the Bank of England, from time to time in force, until payment in full is made. Any interest payable shall be calculated daily.

6. Equipment

   1. The Buyer acknowledges that any Equipment provided in accordance with the terms of this Contract shall remain the property of the Seller at all times unless the parties agree otherwise.
   2. Subject to Condition 6.1 above, the Buyer shall;
      1. ensure that the Equipment is clearly marked as the Seller’s property; and
      2. take all necessary steps to protect the Equipment from any third party actions including but not limited to, theft, insolvency, floating charges and shall inform the Seller immediately if a third party intends to make any clam in relation to the Equipment;
      3. maintain the Equipment in a useable condition at its own expense;
      4. carry out any necessary repair work to the Equipment without delay at its own expense;
      5. insure the Equipment against fire, damage and theft at least to the extent of the replacement value;
      6. report any damage or loss to the Equipment to the Seller as soon as practicable and undertake all and any costs for repair and replacement.

7. Delivery

   1. The Seller shall deliver the Specified Service to the address as notified by the Buyer to the Seller.
   2. The Seller shall reasonably endeavour to deliver the Specified Services to the Buyer on the date indicated by the Seller or the date agreed by the parties, but the time of delivery shall not be of the essence and if despite those endeavours, the Seller is unable for any reason to fulfil any delivery of the Specified Service on the date as indicated, the Seller shall not be deemed to be in breach of Contract or have any liability to the Buyer.
   3. Where the delivery of the Specified Service is to be made in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the contract as a whole as repudiated.
   4. If the Buyer fails to take delivery or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
   5. The Buyer shall inspect the Specified Services within 30 days of delivery or as agreed between the parties.

8. Risk and property

   1. Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery or, if the Buyer wrongfully fails to take delivery, the time when the Seller has tendered delivery of the Goods.
   2. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods, including full legal and beneficial ownership, shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full for:
      1. all Goods delivered to the Buyer under this Contract; and
      2. any other goods delivered to the Buyer under all other contracts between the Seller and the Buyer for which payment of the full price of the goods has not been paid.Payment of the full price of the Goods shall include the Price and any amount of any interest, Additional Charge or other sum payable in accordance with Condition 5 above.
   3. Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property, but the Buyer shall be entitled to resell or use the goods in the ordinary course of its business.
   4. Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to delivery up the Goods to the Seller and, if the Buyer fails to do soforthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
   5. The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.

9. Warranties and liability

   1. Subject to the Conditions set out below the Seller warrants only that the Specified Services will correspond with the Specification at the time of delivery and will be free from defects in material and workmanship for a period of 12 months from the date of their initial use or 24 months from delivery, whichever is the first to expire.
   2. The above warranty is given by the Seller subject to the following conditions:
      1. the Seller shall be under no liability in respect of any defect in the Specified Service arising from the Specification once approved by the Buyer in accordance with Condition 3.3;
      2. the Seller shall be under no liability in respect of any defect arising from fair wear and tear, abuse, accident, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions including improper maintenance (whether oral or in writing), misuse or alteration or repair of the Specified Service without the Seller’s approval;
      3. the Seller shall have no liability in respect of any defect arising from use which is not in accordance with the specified operating environment, failure of the Buyer to provide a suitable installation environment or use other than as specified in accordance with the Specification;
      4. the Seller shall have no liability in respect of any defect arising as a result of any other goods not provided by the Seller;
      5. the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Specified Service has not been paid by the due date for payment;
      6. the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
   3. Subject as expressly provided in these Conditions all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. In particular, the Seller makes no warranty as to the fitness of the Specified Service for any particular purpose even if that purpose is stated in the Buyer?s order. This exclusion includes recommendation or advice from the Seller to the Buyer. The Buyer must satisfy itself as to the fitness for the purpose for which the Specified Service are intended.
   4. Any claim by the Buyer which is based on any defect in the quality or condition of the Specified Service or failure to correspond with the Specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 40 days from the date of delivery and accompanied by supporting documentation which satisfactorily identifies the defect. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Specified Service and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Specified Service had been delivered in accordance with the Contract.
   5. On notification of a claim by the Buyer, the Buyer shall give the Seller a reasonable opportunity to inspect the Specified Service in the same condition as at delivery after discovery of the defect and liability will not be accepted unless this procedure is followed. Under no circumstances will the Seller be liable for any costsincurred by the Buyer in making the Specified Services available for inspection.
   6. Where any valid claim in respect of any of the Specified Services which is based on any defect in the quality or condition of the Specified Services or their failure to meet the Specification is notified to the Seller in accordance with these Conditions, the Seller shall replace or repair the Specified Service (or the part in question) free of charge but the Seller shall have no further liability to the Buyer.
   7. In respect of physical damage to or loss of the Buyer’s tangible property caused by the Seller, its employees, agents or contractors and as provided for in Condition 9.6, the Seller?s liability in connection with the sale of the Specified Services shall be as follows;
      1. the Seller’s public and product liability insurance cover shall be limited to an amount of £2M aggregate in respect of any period of insurance;
      2. in respect of all other direct loss (either in contract, tort or otherwise) the Seller?s total liability under this Contract shall be nil;
      3. in respect of any loss of goodwill or for any type of consequential, special or indirect loss or damage, the Seller’s liability shall be nil.
   8. The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Specified Service, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
      1. Act of God, explosion, flood, tempest, fire or accident;
      2. War or threat of war, sabotage, insurrection, civil disturbance or requisition;
      3. Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
      4. Import or export regulations or embargoes;
      5. Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
      6. Difficulties in obtaining raw materials, labour, fuel, parts or machinery;
      7. Power failure or breakdown in machinery.
   9. Any claim by the Buyer under this Condition 9 in respect of any Specified Service shall not entitle the Buyer to withhold or delay payment in respect of any other Specified Service in respect of which no such claim has been made whether or not the Specified Service forms part of the same instalment, nor shall it entitle the Buyer to cancel any further deliveries not yet made by the Seller.
   10. The Buyer hereby acknowledges and agrees that any work conducted by or for Buyer with regard to the assembly or manufacture of the Specified Services hereunder shall be at the Buyer ?s sole and full responsibility. The Buyer shall ensure that it holds sufficient insurance cover against any and all damages, claims, liabilities, injuries, losses, expenses, and costs arising out of personal injury or death or property damage alleged to have been caused by the Specified Services, their assembly or manufacture, sale, use, operation, storage, transportation, or otherwise, whether the claim is directed to the Specified Services or otherwise, or the use of the Specified Services in conjunction with other goods or services, and whether the claim is brought by the Buyer, its customers or by any third parties. Notwithstanding the foregoing, the Seller agrees to effect product liability insurance arising out of personal injury or death or property damage alleged to have been caused by a defect in the Specified Services, provided that Buyer establishes the existence of such defect to Seller?s reasonable satisfaction, or a court or other governmental authority determinesthe existence of such defect, and that defect is the sole cause of such personal injury or death or property damage alleged therein.
   11. Nothing in these Conditions seeks to limit the Seller’s liability for personal injury or death caused by the Seller?s negligence in respect of which the Seller?s liability shall be unlimited.

10. Indemnity

    1. If any claim is made against the Buyer that the Specified Service infringe or that their use or resale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person, then unless the claim arises from the use of the Specification supplied by the Buyer, in which case Condition 3.5 shall apply, the Seller shall indemnify the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:
       1. the Seller is given full control of any proceedings or negotiations in connection with any such claim;
       2. the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
       3. except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld);
       4. the Buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
       5. the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and
       6. without prejudice to any duty of the Buyer at common law, the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnity the Buyer under this Condition.

11. Termination

    1. Without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to terminate the Contract if:
       1. the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
       2. an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
       3. the Buyer ceases, or threatens to cease, to carry on business; or
       4. the Buyer has not paid the Seller’s invoices in accordance with Condition 5 and such amount remains outstanding after 30 days; or
       5. the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer according.
    2. If this Condition applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Specified Services have been delivered but not paid for the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
    3. Where the Contract is terminated under Condition 11.1, the Buyerprofit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such termination.
    4. For the avoidance of doubt, in the event of termination of this Contract at any time, the Buyer shall be liable to the Seller for the part of the price reasonably and properly incurred up to and including the date of the termination.

12. Export terms

    1. In these Conditions “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any terms or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
    2. Where the Specified Services are supplied for export from the United Kingdom, the provisions of this Condition 12 shall (subject to any terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
    3. The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
    4. Unless otherwise agreed in Writing between the Buyer and the Seller, the Specified Services shall be delivered Ex Works (Buxton, England) Incoterms 2010 and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979

13. General

    1. Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
    2. No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
    3. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected.
    4. A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Conditions but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
    5. These Conditions constitute the entire contract between the parties to the extent that the subject matter is dealt with herein and may only be varied or modified in writing under the hands of the parties or their authorised representatives.
    6. The Contract shall be governed by the laws of England, and the Buyer agrees to submit to the non-exclusive jurisdiction of the English courts.

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Last updated: 07/03/2023