1.1       In these Terms:

“Buyer” means the business or organisation that places an Order.

“Contract” means the contract between us and the Buyer for the supply of Goods, made up of the Order, our acceptance of it and these Terms.

“Credit Terms” means any written credit terms agreed between us and the Buyer.

“Data Protection Legislation” means the UK GDPR, the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 2003, each as amended or replaced from time to time.

“Goods” means the goods described in the Order and accepted by us, including any parts and accessories.

“Insolvency Event” means the Buyer being unable to pay its debts as they fall due, ceasing or threatening to cease business, making any arrangement or composition with its creditors, or the commencement of any act or proceeding in which its solvency is involved, including the appointment of an administrator, receiver or liquidator, a winding-up petition and a statutory demand.

“Order” means the purchase order, or written acceptance of our quotation, received from the Buyer.

“Premises” means our premises at Victory House, 33-34 Gleaming Wood Drive, Chatham, Kent ME5 8RZ.

“Specification” means any specification for the Goods, including related plans and drawings, supplied by the Buyer to us, or provided by us and agreed by the Buyer in writing.

“Terms” means these terms and conditions of sale.

“Warranty Policy” means our warranty policy in force when the Contract is made, a copy of which is available on request.

“Working Day” means a day other than a Saturday, a Sunday or a public holiday in England.

“we”, “us” and “our” mean Brown Europe Limited, trading as Brown GearTech.

1.2       References to legislation are to that legislation as amended or re-enacted from time to time. Headings do not affect interpretation, and “writing” includes email.

2.1       These Terms apply to every Contract and prevail over any terms contained in or referred to in the Buyer’s Order, its acceptance of our quotation, its website or any other document. A variation of these Terms has no effect unless we make or agree to it in writing.

2.2       We supply Goods to businesses only. By placing an Order the Buyer confirms that it does so in the course of its business.

2.3       Our quotations are invitations to treat and are made without obligation on our part. An Order is an offer by the Buyer, and a Contract is formed when we accept the Order in writing (including by order acknowledgement) or, if earlier, when we despatch the Goods or make them available for collection.

2.4       The Buyer is responsible for ensuring that its Order and any Specification are complete and accurate.

2.5       The Contract is the entire agreement between us and the Buyer in relation to the Goods. The Buyer acknowledges that it has not relied on any statement or representation that is not set out in the Contract. Nothing in this clause limits liability for fraud.

2.6       Where Credit Terms have been agreed, they prevail over these Terms on payment and credit matters only.

3.1       Prices are those stated in our written quotation or acceptance of the Order. They are exclusive of VAT, carriage, packaging, insurance and any duties or import charges, which the Buyer pays in addition at the rates applicable.

3.2       We may correct errors and omissions in any quotation, price list or acceptance at any time before delivery. We may also increase the price of the Goods before delivery to reflect an increase in our costs that is beyond our control, including supplier prices, exchange rates, duties and carriage, and we will tell the Buyer in writing when we do so. This clause does not apply to a price that we have expressly confirmed in writing as fixed.

3.3       Where call-off quantities have been agreed and the Buyer does not take them, we may amend the price structure to reflect the quantities actually delivered.

3.4       The minimum order value is £50.00. An Order below that value is charged at £50.00.

3.5       Payment for Goods and services is due at the point of Order unless Credit Terms have been agreed. We will not accept an Order unless payment has been received or the Buyer’s agreed credit limit is sufficient to cover the price of the Goods.

3.6       Where Credit Terms apply, the Buyer shall pay each invoice by the due date stated in them, and time for payment is of the essence.

3.7       The Buyer shall pay all sums due under the Contract in full and in cleared funds, without set-off, counterclaim, deduction or withholding, except as required by law.

3.8       Subject to any Credit Terms, if the Buyer does not pay a sum by its due date, interest accrues on the overdue balance at 1% for each month, calculated on the balance outstanding on the last day of that month, until payment in full, before and after judgment. The parties agree that this is a substantial remedy for late payment for the purposes of the Late Payment of Commercial Debts (Interest) Act 1998. The Buyer shall also pay our reasonable costs of recovering overdue sums, in addition to any fixed sum payable under that Act.

3.9       While any sum is overdue we may suspend further deliveries and withdraw any credit facility, in each case on written notice to the Buyer.

4.1       Unless we state otherwise in writing, the Goods are supplied ex-works at the Premises (Incoterms 2020, EXW). Where we despatch the Goods, carriage and packaging are charged in addition. Where the Buyer arranges collection, a packing charge applies.

4.2       Any period or date for delivery is an estimate. We will take all reasonable steps to deliver within it, but time is not of the essence of the Contract. The Buyer shall not refuse delivery or cancel an Order because of delay, and to the extent permitted by law we are not liable for any loss caused by delay in delivery.

4.3       We may deliver in more than one shipment. Each shipment is a separate contract and may be invoiced separately, and delay in or a defect affecting one shipment does not entitle the Buyer to cancel any other.

4.4       The Buyer shall inspect the Goods on delivery or collection. It shall notify us in writing of any shortage or visible damage within 5 Working Days of delivery or collection, and shall notify the carrier at the same time where we have arranged carriage. Failing that, the Goods are treated as accepted as to quantity and condition, without affecting the Buyer’s rights in respect of defects covered by the Warranty Policy.

4.5       If the Buyer fails to take delivery or collect the Goods when they are ready, we may store them at the Buyer’s risk and charge the Buyer our reasonable storage costs.

5.1       Risk in the Goods passes to the Buyer on delivery to the Buyer or to any carrier or agent acting on its behalf, or on collection. From that time the Buyer is responsible for insuring the Goods, unless we agree otherwise in writing.

5.2       Ownership of and title to the Goods remain with us until we have received payment in full for all of them in accordance with these Terms.

5.3       Until title passes, the Buyer shall hold the Goods as bailee for us, store them so that they are clearly identifiable as our property, and keep them insured. The Buyer shall not sell the Goods, incorporate them in any other article or make any other use of them without our express written consent.

5.4       If any payment is overdue, or an Insolvency Event occurs, we may recover and resell the Goods or any of them, without prejudice to our other rights. The Buyer authorises us and our agents to enter any premises of the Buyer, or under its control, where the Goods are or are reasonably believed to be, for that purpose.

5.5       All sums owed to us become due immediately on the occurrence of an Insolvency Event.

6.1       Provided the Buyer has performed its obligations under the Contract, we will repair or replace, at our discretion and free of charge, any Goods or part of them that are shown to our satisfaction to be defective because of faulty material or workmanship. The warranty periods, claim procedure and exclusions are set out in the Warranty Policy. If the Warranty Policy and this clause 6 conflict on any of those matters, the Warranty Policy prevails.

6.2       Our liability for Goods or parts that we did not manufacture is limited to the guarantee, if any, given to us by their manufacturer, except to the extent that the Warranty Policy gives a warranty of our own.

6.3       Save as set out in this clause 6 and in the Warranty Policy, the Goods are sold without warranty as to quality or performance. To the extent permitted by law, all conditions, warranties and terms implied by statute or common law, including as to satisfactory quality and fitness for purpose, are excluded.

6.4       If a repair is needed outside the warranty period, the Buyer shall return the unit to our works carriage paid. An investigation charge is payable in all cases. We will notify the Buyer of the cost of replacement parts and repair before undertaking any further work.

6.5       A unit repaired under clause 6.4 carries a warranty of 6 months from completion of the repair. Where the unit is regularly used for more than 8 hours a day, that period is reduced in the proportion that 8 hours bears to the average daily hours of use.

7.1       Where the Buyer has specified or selected the Goods for a particular purpose or application, and is technically competent and experienced in the selection and application of goods of the type supplied, we give no warranty and accept no liability, other than for death or personal injury caused by our negligence, that the Goods are suitable for that purpose or application. The Buyer acknowledges that:

(a)      it has selected the Goods on the basis of its own technical assessment and expertise;

(b)      it has not relied on any statement, representation or warranty from us as to the suitability of the Goods for its purpose, unless we have confirmed it in writing as a specific contractual warranty; and

(c)      it is responsible for ensuring that the Goods are suitable for the intended application, operating environment and load conditions.

7.2       We are not responsible for discrepancies, errors or omissions in quotations, analyses, drawings, data, specifications or information that we have prepared using plans, data or information supplied by the Buyer. Our inspection, advice on or approval of any plans, data or information supplied by or for the Buyer, whether before or after our quotation, does not make us liable for them.

7.3       In any application where breakage, excessive wear or any other malfunction of a drive train component could result in personal injury or damage to property, the Buyer shall incorporate, after the drive train, a fail-safe device capable of stopping and holding the load if that occurs.

7.4       The Goods are supplied as components for incorporation into machinery. They must not be put into service until the machinery into which they are incorporated has been declared in conformity with the Supply of Machinery (Safety) Regulations 2008, or the legislation that applies in the territory of use, and any marking required for that territory (UKCA or CE) has been applied. The Buyer is responsible for that declaration and marking.

8.1       The Buyer may not cancel an Order once we have accepted it without our written agreement. Where we agree, the Buyer shall pay our reasonable costs incurred up to the date of cancellation.

8.2       Goods that are not stock items, including special order Goods, cannot be returned under any circumstances.

8.3       Goods that can be restocked are accepted for return only by our express prior agreement, which we give at our sole discretion. Where we authorise a return, we charge a handling charge of at least 40% of the invoice value (excluding carriage and packing), subject to a minimum of £70.00, and the Buyer bears all costs of the return.

8.4       We send any unauthorised return back to the Buyer carriage forward.

8.5       Clauses 8.2 to 8.4 do not apply to Goods returned under the Warranty Policy, to Goods that do not match the Order, or to a shortage or damage notified in accordance with clause 4.4.

9.1       Site visits for service or commissioning are not included in the Contract and are available only if we agree them in writing. Where we agree to a visit, or consider one essential, it is charged at our prevailing rate together with reasonable expenses.

10.1      Nothing in the Contract limits or excludes our liability for:

(a)      death or personal injury caused by our negligence;

(b)      fraud or fraudulent misrepresentation;

(c)      breach of the terms implied by section 12 of the Sale of Goods Act 1979;

(d)      defective products under the Consumer Protection Act 1987;

(e)      our obligation to repair or replace defective Goods under clause 6.1; or

(f)      any other liability that cannot be limited or excluded by law.

10.2      Subject to clause 10.1, we are not liable to the Buyer, whether in contract, tort (including negligence), misrepresentation or otherwise, for loss of profit, revenue, business, goodwill or anticipated savings, for loss of production or downtime, or for any indirect or consequential loss.

10.3      Subject to clause 10.1, our total liability to the Buyer arising under or in connection with any Contract, on any basis, is limited to the price paid or payable for the Goods under that Contract.

10.4      The Buyer shall indemnify us against all losses, claims, damages and expenses that we suffer or incur as a result of:

(a)      our use of any Specification, plans, data or information supplied by or for the Buyer, including any claim that it infringes the rights of a third party; or

(b)      the use of the Goods in breach of clause 7.3, or in a manner contrary to our written instructions, except to the extent that the loss, claim, damage or expense is caused by our negligence or breach of the Contract.

11.1      We are not liable for any cost, damage or delay, and are not in breach of the Contract, to the extent that performance is prevented or delayed by an event beyond our reasonable control. Such events include war, terrorism, riot, civil commotion, strikes and other industrial disputes (including those affecting our suppliers and carriers), acts of government, laws or regulations, embargoes, import or export restrictions, natural disasters, fire, flood, failure of power, telephone or computer systems, and failure by our suppliers or carriers.

11.2      If such an event continues for more than 90 days, we may cancel the undelivered part of the Order without liability to the Buyer.

12.1      All drawings, designs, specifications, technical information and know-how provided by us remain our sole property and must not be used, copied or disclosed by any other party without our express permission.

12.2      The Buyer confirms that it has the right to give us any Specification, plans, data or information that it supplies, and grants us a licence to use them for the purpose of performing the Contract.

13.1      We collect, process and hold personal data in accordance with the Data Protection Legislation. Our Privacy Notice, available on request, sets out how we collect, process, store and retain personal data, the purposes and legal basis for using it, with whom we share it, and the rights of the individuals concerned and how to exercise them.

14.1      Assignment. The Buyer may not assign, subcontract or transfer any of its rights or obligations under the Contract without our written consent. We may assign or subcontract ours.

14.2      Severance. If any provision of the Contract is found to be invalid or unenforceable, the remaining provisions continue in force.

14.3      Waiver. A delay or failure by us to exercise a right or remedy is not a waiver of it.

14.4      Notices. A notice under the Contract must be in writing and delivered by hand, sent by post to the other party’s address stated in the Order or, for us, the Premises, or sent by email to an address that the recipient has notified for the purpose.

14.5      Third party rights. A person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

15.1      The Contract, and any dispute or claim arising out of or in connection with it, including non-contractual disputes and claims, is governed by the law of England and Wales.

15.2      The courts of England and Wales have exclusive jurisdiction to settle any such dispute or claim.

15.3      Clause 15.2 does not prevent us from bringing proceedings to recover sums due or to recover the Goods in the courts of any country in which the Buyer is established or the Goods are located.