1. DEFINITIONS: In these General Terms and Conditions of Sale (the “Conditions”), “GSS” means Gas Sensing Solutions Limited, a company incorporated in Scotland under the Companies Acts with registered number SC284351 and having its registered office Suite 2, Ground Floor, Orchard Brae House, 30 Queensferry Road, Edinburgh, EH4 2HS and its successors, assignees, subcontractors and agents; and “Buyer” means any person, company or other legal entity, who orders or buys Products; and “Products” means the products supplied or to be supplied by GSS to the Buyer in terms of each individual Contract, including all replacements and renewals thereof.
2. ACCEPTANCE:Subject to the Buyer’s acceptance of these Conditions in full to the exclusion of any other terms or conditions stipulated or referred to by the Buyer, each order for Products from the Buyer to GSS (the “Purchase Order”) which is accepted by GSS shall constitute an individual legally binding contract (the “Contract”) subject to these Conditions.
3. PRICES AND SHIPMENT: The prices of the Products are as intimated by GSS to the Buyer and current at the date of GSS’s quotation for a period of 30 days, but may be varied by GSS to take account of any increase in any costs or charges of production, storage or transport or of any levy or taxes or any currency fluctuation which may occur at any time before shipment. All prices are EXW (Incoterms 2020), UK, and all shipment charges shall be invoiced to the Buyer separately.
4. TAXES AND DUTIES: Unless otherwise agreed in writing by GSS, all prices are quoted, all Purchase Orders accepted and all billings rendered exclusive of all customs duties, tariffs, import taxes, and governmental taxes of any kind. Excepting only United Kingdom Value Added Tax when applicable, GSS will not report, collect, or pay any tax which may be imposed on the Buyer and the Buyer shall report and pay all such imposed taxes.
5. PAYMENT: Payment terms are net thirty (30) days after the date of GSS’s invoice, unless otherwise agreed in writing. All payments are to be in United Kingdom pounds sterling unless otherwise agreed. Time shall be of the essence with regard to payment.
6. TITLE AND RISK: Title to the Products shall pass to the Buyer upon full payment. Notwithstanding the terms hereof, risk of loss or damage will pass to the Buyer at the point of shipment of the Products. Time shall not be of the essence with regard to delivery.
7. CHANGES: The Buyer may by written notice to GSS make changes to the Purchase Order in respect of (a) the method of shipping or packing; or (b) the place of delivery. All other changes to the Purchase Order must be agreed to in writing by GSS prior to such changes taking effect. If any change causes an increase or decrease in the cost of, or schedule for, the performance of work under this Purchase Order, an equitable adjustment in the price or schedule, or both, shall be negotiated and the Purchase Order modified accordingly.
8. RESCHEDULING AND CANCELLATIONS: No order, in whole or in part, may be rescheduled or cancelled without GSS’s prior written consent.
9. BUYER FURNISHED MATERIAL: GSS shall not be liable for any loss or damage from any cause whatsoever, except for gross negligence or wilful misconduct on the part of GSS, to property owned by the Buyer and furnished to or left with GSS, and the risk of loss for material furnished to or left with GSS shall remain with the Buyer
10. INSPECTION AND ACCEPTANCE OF PRODUCT: Acceptance of the Product shall occur within thirty (30) days after delivery to Buyer. Failure to inspect and reject nonconforming items within such period shall be deemed acceptance by the Buyer with full responsibility for payment.
11. LIMITED WARRANTY: (a) Except as otherwise specified herein, GSS warrants the Product shipped hereunder shall conform (within accepted or stipulated tolerances) in material and workmanship with GSS’s published specifications for a period of time and under such conditions as specified in GSS’s warranty for the individual Product (the “Warranty”). The Warranty shall apply to any Products manufactured in accordance with the Buyer’s specifications and GSS shall not be held liable or responsible for the lack of sufficiency, fitness for purpose or satisfactory quality in respect of the Products insofar as attributable to the Buyer’s specifications. (b) The Warranty is made to the original purchaser only at the original location and is non-transferable and may only be modified or amended by a written instrument signed by GSS’s authorised representative. Major sub- systems manufactured by other firms but integrated into GSS’s system are covered by the original manufacturer’s warranty. (c) A Product which is replaced or repaired under this Warranty is warranted only for the remaining portion of the original warranty period applicable to the Product. (d) Any Product which the Buyer considers defective shall be returned to GSS’s plant, transportation costs prepaid and borne by the Buyer. The risk of loss of the Product shipped or delivered to GSS’s plant for repair or replacement will be borne by the Buyer. (e) If it is found that any Product has been returned without cause and is still serviceable, the Buyer will be notified and the Product returned at the Buyer’s expense; in addition, a charge for testing and examination may, at GSS’s sole discretion, be made on any Product so returned. (f) GSS EXCLUDES (IN SO FAR AS PERMITTED BY LAW) ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS EXPRESSLY SET FORTH IN THE ABOVE WARRANTY. IN NO EVENT SHALL GSS BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE PRODUCT DELIVERED HEREUNDER.
12. LIMITATION OF LIABILITY: GSS’s sole and exclusive liability and the Buyer’s sole and EXCLUSIVE REMEDY under the Warranty shall be (at GSS’s sole discretion) to repair or replace any non-conforming Product, or to credit Buyer’s account. These remedies are available only if GSS is promptly notified in writing by the Buyer upon discovery of nonconformity and if GSS’s examination of such Product discloses to GSS’s reasonable satisfaction that such nonconformity actually exists and the Product has not been (1) repaired, worked on, or altered by persons not authorised by GSS so as in GSS’s sole judgement to injure the stability, reliability, or proper operation of such Product; (2) subject to misuse, negligence or accident; or, (3) connected, installed, used or adjusted otherwise than in accordance with the instructions furnished by GSS. GSS shall not be liable under any circumstances whatsoever for any indirect or consequential damages of any nature or for any loss of profits or special damages of any nature, which the Buyer may suffer as a result of any breach by GSS of its obligations under this Agreement or otherwise. GSS’s entire liability to the Buyer in respect of any loss or damage arising from any breach of GSS’s contractual obligations under these Conditions or for any representation, statement, tortuous or delictual act including negligence shall be limited to an aggregate total of the payments made by the Buyer to GSS pursuant to these Conditions. Nothing in these Conditions shall limit or exclude GSS’s liability for (i) personal injury or death resulting from any negligence of GSS or its employees, or (ii) which may be established as resulting from a proven defect in the Products, or (iii) any other liability which by law GSS cannot limit or exclude.
13. INTELLECTUAL PROPERTY RIGHTS: (a) Rights to any patents, trademarks, copyright and other registered or unregistered intellectual property rights contained in or used in connection with the Products or otherwise invented, discovered or created by GSS, including title to and rights under any patent application or patent which may issue thereon throughout the world, shall reside solely with GSS or its licensees (as appropriate), together with exclusive power to determine whether or nor and where a patent application shall be filed and dispositioned of any disputes thereunder. (b) Sale of the Products or performance of any work under a Contract does not convey any rights or license to GSS’s proprietary data used or developed in the course of the Contract. Any data required to be delivered are limited to that data expressly identified on the face of the Purchase Order as a deliverable item. (c) The Buyer shall not be entitled to reverse engineer, redesign, disassemble, or dismantle any Products.
14. INTELLECTUAL PROPERTY INDEMNITY: The Buyer shall indemnify, defend and hold harmless GSS and its directors, officers, employees, agents and customers against all costs, losses, damages and liabilities of every kind, including reasonable lawyer’s fees, arising from or related to claims that the manufacture, use, sale or disposal of the Products infringes any patent, trademark, copyright, trade secret or other intellectual property right of a third party if the alleged infringement concerns a Product made by GSS pursuant to the Buyer’s drawings and specifications.
15. LEGAL FEES: If any legal action is necessary to enforce the terms of a Contract, the prevailing party shall be entitled to reasonable legal fees in addition to any relief to which it may be entitled.
16. AUDITS: GSS considers the financial information supporting the cost and pricing data, in connection with a Contract, to be sensitive and proprietary and, therefore, not subject to audit by the Buyer.
17. FORCE MAJEURE: GSS shall not be held responsible for any failure of performance or failure to make delivery of all or any part of the Products purchased under these Conditions due to government action, statute, ordinance or regulation, strike or other labour trouble, fire, flood or earthquake damage to or destruction in whole or in part of merchandise or manufacturing plant; lack of or inability to obtain raw materials, labour, fuel, electrical power, water, or supplies; or any other cause, act of God, contingency, or circumstances within or without the United Kingdom not subject to its control which hinders the manufacture or delivery of the Products.
18. DISPUTES: Any dispute, controversy or claim arising out of or relating to a Contract or these Conditions, including claims for its breach, shall be referred in the first instance to arbitration within the United Kingdom. The arbiter shall be chosen by mutual agreement of the parties, failing which the arbiter shall be appointed by the President of the Law Society of Scotland upon application by either party. Any cash award shall be payable in pounds sterling. The arbitration shall be conducted in the English language. The parties also submit to the non-exclusive jurisdiction of the Scottish Courts for the determination of any question or dispute between them.
19. APPLICABLE LAW: The Conditions shall be governed by and shall be construed in accordance with the laws of Scotland.
All standard GSS products are covered by the warranty detailed in clause 11 for a period of 12 months from the date of delivery. Custom products may be subject to different warranty conditions.