TERMS AND CONDITIONS OF SALE

TERMS AND CONDITIONS OF SALE
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TERMS AND CONDITIONS OF SALE
1
Interpretation
1.1
In these Terms and Condition of Sale:
“Buyer”
means the person who accepts a quotation of the Seller for the sale of the Goods or whose
order for the Goods is accepted by the Seller
“Goods”
means which the Seller is to supply in accordance with the Agreement
“Seller”
means DAGE PRECISION INDUSTRIES LIMITED
“Conditions”
means the terms and conditions and (unless the context other requires) includes any
special terms and conditions agreed in writing between the Buyer and the Seller
“Contract”
“Writing”
1.3
means the contract for the purchase and sale of the Goods
includes telex cable facsimile, e-mail or paper copy transmission and comparable means of
communication
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
The headings in these Conditions are for convenience only and shall not affect their interpretation
2
Basis of the Sale
2.1
The Seller shall sell and the Buyer shall purchase the Goods 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
2.2
No variation to these Conditions shall be binding unless agreed in Writing between the authorized
representatives of the Buyer and the Seller
The Seller’s employees or agents are not authorized to make any representations concerning the
Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer
acknowledges that it does not rely on, and waives any claim for breach of, any such representations
which are not so confirmed
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
1.2
2.3
2.4
3
Orders and specifications
3.1
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
The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of
any order (including any applicable specification) submitted by the Buyer, and for
giving the Seller any necessary information relating to the goods within a sufficient time to
enable the Seller to perform the Contract in accordance with its terms
The quantity, quality and description of and any specification for the Goods shall be
those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order
(if accepted by the Seller)
the Goods are to be manufactured or any process is to be applied to the Goods by the
Seller in accordance with a specification submitted by the Buyer, 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
3.2
3.3
3.4
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3.5
3.6
property rights of any other person which results from the Seller’s use of the Buyer’s
specification
The Seller reserves the right to make any changes in the specification of the Goods which
are required to conform with any applicable statutory or EC requirements or, where the
goods are to be supplied to the Seller’s specification, which do not materially affect their
quality or performance
No order which has been accepted by the Seller may be cancelled by the Buyer except 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 of goods
4.1
The price of the Goods shall be the Seller’s quoted price or, where no price has been
quoted (or a quoted price is no longer valid), the price list in the Seller’s published price list
current at the date of acceptance of the order. Where the Goods are supplied for export
from the United Kingdom, the Seller’s published export price list shall apply. 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
The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to
increase the price of the Goods 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 specifications for the Goods 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
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, and where the Seller agrees to deliver the Goods
otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges
for transport, packaging and insurance
The price is exclusive of any applicable value added tax, which the Buyer may be
additionally liable to pay to the Seller
The cost of returnable containers will be charged to the Buyer in addition to the price of the
Goods, but full credit will be given to the Buyer provided they are returned undamaged to
the Seller before the due payment date
4.2
4.3
4.4
4.5
5
Terms of payment
5.1
Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller
shall be entitled to invoice the Buyer for the price of the Goods on or at any time after
delivery of the Goods unless the Goods are to be collected by the Buyer or the Buyer
wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to
invoice the Buyer for the price at any time after the Seller has notified the Buyer that the
goods are ready for collection or (as the case may be) the Seller has tendered delivery of
the Goods
The Buyer shall pay the price of the Goods within 30 days of the [date of the Seller’s
invoice], and the Seller shall be entitled to recover the price, notwithstanding that delivery
5.2
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5.3
5.3.1
5.3.2
5.3.3
may not have taken place and the property in the Goods has not passed to the Buyer. The
time of payment of the price shall be of the essence of the Contract. Receipts for payment
will be issued only upon request
If the Buyer fails to make any payment on the due date 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 to the Buyer;
appropriate any payment made by the Buyer to such of the Goods (or the goods 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
charge the Buyer interest (both before and after any judgement) on the amount unpaid, at
the rate of 3 per cent per annum above Lloyds TSB Bank base rate from time to time, until
payment in full is made (a part of a month being treated as a full month for the purpose of
calculating interest)
6
Delivery
6.1
Delivery of the Goods shall be made by the Buyer collecting the Goods Ex-Works
(INCOTERMS 2010) Seller’s shipping point.
Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be
liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not
be of the essence unless previously agreed by the Seller in writing. The Goods may be
delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice
to the Buyer
If the Buyer fails to take delivery of the Goods 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 charge delivery, handling
and administrative costs up to a maximum of 50 per cent of the value of the Goods
The Buyer shall provide all necessary manpower or equipment to safely off-load any
delivery vehicle and shall be responsible for and shall indemnify the Seller from and against
all damage and loss caused to any delivery vehicle the pallets and/or the Goods by virtue of
the Buyer’s failure to comply with the condition of this sub-clause.
If the Buyer fails to take delivery of the Goods 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:
store the Goods until actual delivery and charge the Buyer for the reasonable costs
(including insurance) of storage; or
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
Where the Goods are to be delivered 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
6.2
6.3
6.4
6.5
6.5.1
6.5.2
6.6
7
Risk and property
7.1
Risk of damage to or loss of the Goods shall pass to the Buyer Ex-Works (INCOTERMSrms
2010) Seller’s shipping point.
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8
Warranty
8.1
Subject to the conditions set out below the Seller warrants that the Goods will correspond
with their specification at the time of delivery and will at that time be free from defects in
material and workmanship for a period of 12 months from the date of receipt by Buyer.
Warranty for spare or service parts in new or repaired condition will be for a period of six (6)
months from the date of receipt by Buyer.
The above warranty is given by the Seller subject to the following conditions:
the Seller shall be under no liability in respect of any defect in the Goods arising from any
drawing, design or specification supplied by the Buyer;
the Seller shall be under no liability in respect of any defect arising from fair wear and tear,
wilful damage, negligence on the part of the Buyer or its servants, agents or employees
abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in
writing), misuse or alteration or repair of the Goods without the seller’s approval;
the Seller shall be under no liability under the above warranty (or any other warranty,
condition or guarantee) if the total price for the Goods has not been paid by the due date for
payment;
in the event of the Buyer at any time alleging or claiming that the Goods (when used in
accordance with the supplier’s instructions or recommendations and in normal operating
conditions) produce or have at any time produced incorrect, faulty or misleading readings
and/or results the onus of proof in respect of such allegation or claim shall be on the Buyer
Subject as expressly provided in these Conditions, and except where the Goods are sold to
a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act
1977), all warranties, conditions or other terms implied by statute or common law are
excluded to the fullest extent permitted by law
Any claim by the Buyer which is based on any defect in the quality or condition of the goods
or their failure to correspond with specification shall (whether or not delivery is refused by
the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the
defect or failure was not apparent on reasonable inspection) within a reasonable time after
discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the
Seller accordingly, the Buyer shall not be entitled to reject the Goods 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 Goods had been delivered in accordance with the Contract
Where any valid claim in respect of any of the Goods which is based on any defect in the
quality or condition of the Goods or their failure to meet specification is notified to the Seller
in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or
part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the
price of the Goods (or a proportionate part of the price) but the Seller shall have no further
liability to the Buyer EXCEPT IN RESPECT OF DEATH OR PERSONAL INJURY CAUSED
BY THE SELLER’S NEGLIGENCE, THE SELLER SHALL NOT BE LIABLE TO THE BUYER
BY REASON OF ANY REPRESENTATION (UNLESS FRAUDULENT), OR ANY IMPLIED
WARRANTY, CONDITION OR OTHER TERM, OR ANY DUTY AT COMMON LAW, OR
UNDER THE EXPRESS TERMS OF THE CONTRACT.
8.2
8.2.1
8.2.2
8.2.3
8.2.4
8.3
8.4
9
Delay in Performance
9.1
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 Goods, if the delay or failure was due to any cause beyond the Seller’s
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9.1.6
9.1.7
reasonable control. Without prejudice to the generality of the foregoing, the following shall
be regarded as causes beyond the Seller’s reasonable control:
Act of God, explosion, flood, tempest, fire or accident;
war or threat of war, sabotage, insurrection, civil disturbance or requisition;
acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of
any governmental, parliamentary or local authority;
import or export regulations or embargoes;
strikes, lock-outs or other industrial actions or trade disputes (whether involving employees
of the Seller or of a third party);
difficulties in obtaining raw materials, labour, fuel, parts or machinery;
power failure or breakdown in machinery
10
Limitation of Liability
10.1
Seller shall not be liable to, or indemnify Buyer from, any consequential loss or damage
(whether for loss of profit or otherwise), costs, expenses or other claims for compensation
whatsoever (and whether caused by the negligence of the Seller, its employees or agents,
or otherwise) which arise out of or in connection with the supply of the Goods or their use or
resale by the Buyer, and the entire liability of the Seller under or in connection with the
contract shall not exceed the price of the Goods, except as expressly provided in these
Conditions
11
Indemnity
11.1
If any claim is made against the Buyer that the Goods infringe or that their use or resale
infringes the apparatus 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 any
drawing, design or specification supplied by the Buyer, the Seller shall indemnify the Buyer
against all loss, damages, costs and expenses awarded against or incurred by the Buyer in
connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the
claim, provided that:
the Seller is given full control of any proceedings or negotiations in connection with any such
claim;
the Buyer shall give the Seller all reasonable assistance for the purposes of any such
proceedings or negotiations;
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);
the Buyer shall do nothing which would or might violate 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);
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
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 indemnify
the Buyer under this clause
9.1.1
9.1.2
9.1.3
9.1.4
9.1.5
11.1.1
11.1.2
11.1.3
11.1.4
11.1.5
11.1.6
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12
Insolvency of Buyer
12.1 This clause applies if:
12.1.1 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
12.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or
assets of the Buyer; or
12.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
12.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur
in relation to the Buyer and notifies the Buyer accordingly
12.2 If this clause 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 Goods have been delivered
but not paid for the price shall become immediately due and payable notwithstanding any
previous agreement or arrangement to the contrary
13
General
13.1
The Seller is a member of the group of companies whose parent company is Nordson
Corporation and accordingly the Seller may perform any of its obligations or exercise any of
its rights hereunder by itself or through any other member of its group, provided that any act
or omission of any such other member shall be deemed to be the act or omission of the
Seller
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
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
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 provisions in question shall not be affected
The parties will attempt in good faith to resolve any dispute or claim arising out of or relating
to this Agreement promptly through negotiations between the respective senior executives
of the parties who have authority to settle the same
If the matter is not resolved through negotiation, the parties will attempt in good faith to
resolve the dispute or claim through an Alternative Dispute Resolution (ADR) procedure as
recommended to the parties by the Centre for Dispute Resolution
If the matter has not been resolved by an ADR procedure within 90 days of the initiation of
such procedure, or if either party will not participate in an ADR procedure, the dispute shall
be referred to arbitration by a single arbitrator appointed by agreement or (in default)
nominated on the application of either party by the President for the time being of the
Chartered Institute of Arbitrators in accordance with the Arbitration Rules of the said Institute
or to litigation
The construction, performance and validity of this Agreement shall in all respects be
governed by the Laws of England.
13.2
13.3
13.4
13.5
13.6
13.7
13.8
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