Unless otherwise agreed in writing, the following terms and conditions apply without exception to all sales by ADI-GARDINER LIMITED (“ADI”) to Buyer.
1. SOLE TERMS. ADI’s sale is expressly limited to the terms herein and any additional or different terms or conditions on Buyer’s purchase order or any other instrument, agreement, or understanding are deemed to be material alterations and are rejected and not binding upon ADI. ADI’s acceptance of Buyer’s purchase order is expressly conditional upon Buyer’s assent to the terms and conditions contained herein in their entirety. Buyer’s acceptance of delivery from ADI constitutes Buyer’s acceptance of these terms and conditions in their entirety.
2. QUOTE/ PRICES. ADI may change the prices and specifications of all goods at its sole discretion and without any notice, with the exception that ADI’s quotation is firm only if Buyer enters an order within the time specified on the quote or, if none be mentioned, 30 days. Buyer must request shipment of the entire quantity of goods ordered within 12 months from date of order, otherwise, ADI standard prices at time of shipment may, at ADI’s option, apply to those quantities actually delivered, even if already invoiced. Unless explicitly stated, prices do not include installation, start-up, commissioning or maintenance. All tooling, designs, drawings, and other intellectual property produced or delivered hereunder are owned by the manufacturer of the relevant Goods.
3. PAYMENT. Unless otherwise expressly agreed in writing, all payments are due in the currency as stated on the invoice and shall be sent to the address specified on such invoice, unless otherwise stated in writing by ADI, and are due in ADI’s account within 30 days end of the month following the date of invoice. To the extent permitted by law, disputes as to invoices are deemed waived 15 days following the invoice date. ADI reserves the right to correct incorrect invoices. ADI at all times reserves the right to evaluate Buyer’s credit standing, and, if Buyer fails to qualify for credit under ADI’s criteria, ADI may modify or withdraw credit terms without notice and require guarantees, security or payment in advance for further deliveries of goods and decline to make any shipments or deliveries, or perform any work, except upon receipt of payment for all amounts due. Invoices remaining unpaid after their due date may be subject to an interest charge at the lower of 2% per month or the maximum rate permitted by law, for each full or partial month that they remain unpaid. Buyer will pay all costs of collection on unpaid amounts, including attorneys’ fees. These remedies are in addition to those available at law or in equity. Buyer may not set off or recoup invoiced amounts or any portion thereof against sums that are due or may become due from Resideo. This clause will survive expiration or termination of this Order.
4. DELIVERY. All delivery dates are estimates unless agreed otherwise by ADI in writing. Delivery terms for goods are EXWORKS (Incoterms 2020) ADI’s facility with all risk of loss or damage to goods passing to Buyer upon making the goods available to carrier for shipment. Unless otherwise stipulated by ADI, the prices quoted by ADI are inclusive of carriage within England and Wales provided they are delivered by ADI's own transport but are exclusive of VAT which will be added at the current rate and tax point. Delivery will be made by ADI transport, subject to such transport being available and at the discretion of ADI. In the event that any goods are to be delivered to the Buyer or to his order outside of the specific territory where goods are sold, ADI shall be entitled to add to the invoice price a reasonable sum in respect of carriage. Within 14 days of delivery, any claim for shortage must be reported in writing to ADI, otherwise all goods will be deemed delivered and accepted. Buyer shall be liable for any delays or increased costs incurred by ADI caused by or related to Buyer’s acts or omissions. Title to the goods shall pass to Buyer when it has paid the full price for the goods, and until such time as full payment is made, Buyer shall comprehensively insure the goods for the benefit of ADI, keep them free from all charges and security interest and give appropriate notice of reservation of ownership to third parties.
5. TAXES. The amount of any and all applicable taxes will be added to the price and paid by Buyer, unless Buyer has provided ADI with exemption certificates acceptable to the taxing authorities.
6. FORCE MAJEURE. ADI is not liable for any delay in production or delivery of goods if due to a force majeure event, which includes, among other things, inability or refusal by third party suppliers to provide ADI goods, parts, services, manuals or other information necessary to the goods to be delivered, shortages or inability to obtain materials or components, delays or refusals to grant an export license or the suspension or revocation thereof, or any other acts of any government that would limit ADI’s ability to perform, fire, earthquake, flood, severe weather conditions, or any other acts of God, quarantines, epidemics, pandemics, or other regional medical crises, labour strikes or lockouts, riots, strife, insurrection, civil disobedience, armed conflict, terrorism or war (or imminent threat of same), or any other cause whatsoever beyond ADI’s reasonable control. If the force majeure event continues for longer than 90 days, either party may terminate Buyer’s purchase order and Buyer will pay ADI for work performed prior to termination and all reasonable expenses incurred by ADI as a result of such termination. In the event of delays in delivery or performance caused by force majeure or Buyer, the date of delivery or performance shall be extended by the period of time ADI is actually delayed or as mutually agreed. If, for reasons other than the foregoing, ADI should default or delay or not deliver goods, Buyer’s sole remedy against ADI is an option to cancel Buyer’s purchase order, through prior written notice to ADI. ADI may make deliveries under any order in one or more shipments. ADI may terminate or suspend an order if there is a material breach by Buyer and Buyer fails to begin a cure within 10 calendar days after receipt of written notice.
7. CANCELLATION. If the Buyer shall at any time cancel any purchase order or other contract for the purchase of goods, or refuse to accept delivery of the goods, the Buyer shall be obliged to pay to the Seller the total contract price in respect of the goods save to the extent otherwise agreed in writing by the Seller.
8. ADI’S TRADEMARKS. Buyer shall only use ADI’s Trademarks in the specific form and manner provided by ADI to Buyer and in strict conformity and compliance with any guidelines provided by ADI. Buyer shall not utilize any ADI Trademark for any unauthorized purpose including, but not limited to, using any ADI Trademark as part of a corporate, business, or trading name, and shall not attempt to register or own in any country any ADI Trademark, any domain name incorporating in whole or in part any ADI Trademark or any name, trade name, domain name, keyword, mark or social or business networking/media account or identification name confusingly similar to any ADI Trademark. Buyer recognizes the validity of ADI’s Intellectual Property and acknowledges that the same are the property of ADI and that no right, title or interest in ADI’s Intellectual Property will be transferred to Buyer under these terms and conditions. ADI may revoke Buyer’s right to use any ADI Trademarks at any time and in its sole and absolute discretion.
9. LIMITED WARRANTY AND LIMITATIONS. Products distributed by ADI are warranted by the third-party manufacturer or pursuant to the terms of the warranty included in the packaging, for products manufactured by ADI, for a period as defined by the third-party manufacturer or in such documentation included with such products. ADI assigns to the Buyer those warranties and only those warranties extended by such third-party manufacturers or vendors for non-ADI branded products and provides only those warranties included in the packaging for ADI manufactured products. ADI does not itself warranty any products other than those it manufactures (and then solely pursuant to the terms and subject to the limitations set forth in the documentation included with such products) and sells all other products only on an as is basis. THERE ARE NO REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS OR IMPLIED, OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. IN NO CASE SHALL ADI BE LIABLE TO ANYONE FOR ANY PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES FOR BREACH OF THIS OR ANY OTHER REPRESENTATION, WARRANTY OR CONDITION, EXPRESS OR IMPLIED, OR UPON ANY OTHER BASIS OF LIABILITY WHATSOEVER, EVEN IF THE LOSS OR DAMAGE IS CAUSED BY ITS OWN NEGLIGENCE OR FAULT AND EVEN IF ADI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. ADI does not represent that the products it manufactures or it sells may not be compromised or circumvented; that the products will prevent any personal injury or property loss by burglary, robbery, fire or otherwise, or that the products will in all cases provide adequate warning or protection. Buyer understands and will cause its customers to understand that a properly installed and maintained alarm may only reduce the risk of a burglary, robbery or fire without warning, but it is not insurance or a guarantee that such will not occur or will not cause or lead to personal injury or property loss. CONSEQUENTLY, ADI SHALL HAVE NO LIABILITY FOR ANY PERSONAL INJURY, PROPERTY DAMAGE OR OTHER LOSS BASED ON ANY CLAIM AT ALL INCLUDING A CLAIM THE PRODUCT FAILED TO GIVE WARNING. HOWEVER, IF ADI IS HELD LIABLE WHETHER DIRECTLY OR INDIRECTLY FOR ANY LOSS OR DAMAGE WITH RESPECT TO THE PRODUCTS IT SELLS, REGARDLESS OF CAUSE OF ORIGIN, ITS MAXIMUM LIABILITY SHALL NOT IN ANY CASE EXCEED THE PURCHASE PRICE OF THE PRODUCT UNDER THE SPECIFIC ORDER, WHICH SHALL BE FIXED AS LIQUIDATED DAMAGES AND NOT AS A PENALTY, AND SHALL BE THE COMPLETE AND EXCLUSIVE REMEDY AGAINST ADI.
Return for Credit Unused Product. At its option, Seller may accept as a return for credit unused product in its unopened original packaging and in a complete (i.e. complete with original instructions, all leads and ancillary equipment, etc.) condition that could be sold as new providing the product was purchased from Seller no more than thirty (30) days prior to the date of return. Buyer must provide proof of purchase within the preceding thirty (30) days. Buyer shall be responsible for any freight on returns. No cash refunds will be given.
Special Order Items: Defined as items not shown in the ADI catalogue and not stocked as core by ADI are, at Seller’s option, non-returnable or may be returned with written authorisation subject to a restocking fee. Once the order has been placed, the customer commits to paying in full for the product including any associated costs including freight. As such, the customer will be liable for all charges if the order is cancelled prior to the order being delivered. For non-returnable items, no return privileges apply.
Defectives & Product for Repair: Goods which are returned under warranty shall be returned transportation prepaid to ADI. No goods will be accepted for return without an authorization number (RMA) obtained in advance of shipment to ADI and Buyer must provide proof of purchase of Goods from ADI. Goods which are determined to be defective shall be repaired or replaced, at ADI's option, and return shipped with transportation prepaid. Goods subject to contamination, wear and tear or burnout through usage shall not be deemed defective because of such contamination, wear and tear or burnout. No warranty shall apply if no fault is found by the manufacturer or, in the sole opinion of ADI or the manufacturer, the defect or damage was caused by or related to installation, combination with other parts and/or products, modification to or repair of any goods other than by ADI, or resulted from Buyer’s acts, omissions, misuse, or negligence. Goods which are not found by ADI to be faulty shall be subject to a reasonable handling charge in the region of £25, subject to ADI's discretion. Repaired or replaced goods shall be warranted for the remainder of the unused warranty term or for 90 days from shipment, whichever is longer. It is Buyer’s responsibility to ensure that the Goods are fit for the application in which they are used. Software will be furnished on a medium that is free of defect in materials or workmanship under normal use for so long as the hardware and/or system is under warranty. During this period, ADI will replace without charge any such medium it finds defective. As for the quality or performance of any software or data, they are supplied “AS IS” WITH NO WARRANTY. If ADI provides any services to the Buyer, including but not limited to training or assistance with configuration and installation of the Goods, ADI shall provide such services in accordance with reasonable industry practice at such rates as may be specified by ADI in its price list from time to time. ADI accepts no liability to the Buyer arising out of the provision of such services.
11. LIMITATION OF LIABILITY. (a) In no event shall ADI be liable for (i) any indirect, incidental, consequential loss; (ii) any loss arising from business interruption; (iii) loss of profits; (iv) loss of revenue; (v) loss of use of any property or capital; (vi) loss of anticipated savings; or (vii) loss of data. ADI shall not be liable for any loss or damage where that liability arises as a result of its knowledge (whether actual or otherwise) of the possibility of any such loss or damage. (b) ADI’s liability in respect of any purchase order or otherwise under these terms and conditions shall in no case exceed the contract price of the specific goods that give rise to the claim. (c) These exclusions and limitations on damages shall apply regardless of how the loss or damage may be caused and against any theory of liability, whether based in contract, tort, indemnity or otherwise. (d) The Buyer shall indemnify ADI against claims, damages, losses, costs and expenses incurred by ADI as a result of either claims made against ADI by third parties arising out of the combination or use of the goods with any incompatible ancillary products that may be connected to the goods or any other matter for which ADI would not be liable to Buyer under these terms and conditions. (e) Buyer agrees to limit its liability to its customers to the fullest extent permitted by law. Neither party seeks to exclude or restrict its liability for (i) death or personal injury resulting from gross negligence; (ii) fraud; (iii) or any matter in respect of which, by law, it is not permitted to restrict its liability. (f) Buyer acknowledges that ADI has no obligation to provide any form of cybersecurity or data protection relating to the operation of the goods, software or the network environment in which goods or software are sold.
12. CONFIDENTIAL INFORMATION means any non-public information of a party, such as proprietary technology, trade secrets, know-how, methods of operations, marketing data and sales programs, market studies and trends, financial information, pricing policies, vendor and customer lists, buying partners, Point of Sales reports and other information relating to the business, products, purchases or sales of a party or any of its suppliers or customers. Buyer acknowledges and agrees that ADI may use Buyer’s Confidential Information to perform its obligations under these terms and conditions as they apply to the current or contemplated business relationship and may disclose such information to persons on a need to know basis to perform such obligations, provided such persons are bound by written confidentiality restrictions no less stringent than those contained herein. ADI retains the right to utilize any and all data and information that is collected, generated, processed or transmitted by or through the products and all product related data and information provided or transmitted to ADI regarding the operation or performance of the products in an anonymized form for any business purpose, including product, software or service development, marketing or sales support or other analytics. To the extent that ADI does not own, is not licensed, or does not enjoy sufficient usage rights over any such product related information or data, Buyer grants ADI and its affiliated companies (or shall procure for ADI and its affiliated companies the grant of) a perpetual right to use and make derivative works from such information and data for any lawful purpose.
13. RECOMMENDATIONS. Any recommendations or assistance provided by ADI concerning the use, design, application, or operation of the goods shall not be construed as representations or warranties of any kind, express or implied, and such information is accepted by Buyer at Buyer’s own risk and without any obligation or liability to ADI. It is the Buyer’s sole responsibility to determine the suitability of the goods for use in the Buyer’s application(s). The failure by ADI to make recommendations or provide assistance shall not give rise to any liability to ADI.
14. LAWS. a) Buyer will comply with all applicable laws, regulations, and ordinances of any governmental authority in any country having proper jurisdiction, including, without limitation, those laws of the United States or other countries that regulate the import or export of the goods provided by ADI and shall obtain all necessary import/export licenses in connection with any subsequent import, export, re-export, transfer, and use of all goods, technology, and software purchased, licensed, and received from ADI. Unless otherwise mutually agreed in writing, Buyer agrees that it will not use the goods in connection with any activity involving nuclear fission or fusion, any use or handling of any nuclear material, or any nuclear, chemical, or biological weapons. b) Goods and services delivered by ADI hereunder will be produced and supplied in compliance with all applicable laws and regulations in the United Kingdom. Buyer confirms that it will ensure that all goods are properly installed and used in accordance with the Health and Safety at Work Act 1974, and Buyer will indemnify ADI in respect of any costs, claims, actions or liability arising out of that Act, or otherwise arising out of the supply by Buyer or use by others of the goods.
15. PRECLUSION AGAINST OFFSET Buyer shall not set offset any invoiced amount against any amount due or to become due from ADI to Buyer or its affiliates.
16. WEEE a) Prices do not include the costs of recycling goods covered by the European WEEE Directive 2002/96/EC and such costs may be added to the prices quoted. b) Unless a charge has been made therefore under section 15 a) above, if the provisions of the WEEE Directive 2002/96/EC as implemented in any local jurisdiction apply to goods, the financing and organisation of the disposal of the waste electrical and electronic equipment are the responsibility of the Buyer who herewith accepts this responsibility, and Buyer will indemnify ADI in respect of all such liabilities. The Buyer will handle the collection, processing and recycling of the goods in accordance with all applicable laws and regulations and shall pass on this obligation to the final user of the goods. Failure by the Buyer to comply with these obligations may lead to the application of criminal sanctions in accordance with local laws and regulations.
17. APPLICABLE LAW. English law will govern, excluding its provisions on conflict of laws. The English courts will have exclusive jurisdiction to adjudicate any dispute related to these terms and conditions.
18. INDEMNIFICATION. Buyer shall indemnify ADI for all costs and damages, including attorneys’ fees, suffered by ADI as a result of Buyer’s actual or threatened breach of these terms and conditions.
19. MISCELLANEOUS. These terms and conditions constitute the entire agreement of ADI and Buyer, superseding all prior agreements or understandings, written or oral, and cannot be amended except by a mutually executed agreement in writing. Buyer may not assign any rights or duties hereunder without ADI’s written prior consent. ADI may subcontract its obligations hereunder without Buyer’s consent. No representation, warranty, course of dealing, or trade usage not contained or expressly set forth herein will be binding on ADI. Headings and captions are for convenience of reference only and do not alter the meaning or interpretation of these terms and conditions. No failure by ADI to enforce at any time for any period the provisions hereof shall be construed as a waiver of such provision or of the right of ADI to enforce thereafter each and every provision. In the event any provision herein is determined to be illegal, invalid, or unenforceable, the validity and enforceability of the remaining provisions shall not be affected and, in lieu of such provision, a provision as similar in terms as may be legal, valid, and enforceable shall be added hereto. Provisions herein which by their very nature are intended to survive termination, cancellation, or completion of Buyer’s order after acceptance by ADI shall survive such termination, cancellation, or completion. All stenographic and clerical errors are subject to correction. These terms and conditions shall confer no benefit on any third party or the right to enforce any term or condition under the Contracts (Rights of Third Parties) Act 1999.