Term and Condition

Unless otherwise agreed in writing by us all goods are supplied on the following conditions to the exclusion of any terms or conditions stipulated by the Buyer and of any representations warranties or communications not expressly incorporated herein.

1) Orders

1. a) No Order will result in a binding contract of sale unless and until we have accepted it in writing.
2. b) No Order which has been accepted by us may be cancelled by the Buyer except with our prior written consent.

2) Prices

1. a) All prices are Ex Works/FCA unless otherwise stated and only apply to the total quantities and delivery dates and rates specified.
2. b) All additional costs incurred by us on account of any alterations made at the Buyer’s request to quantities, delivery dates or rates or agreed changes in specifications shall be borne by the Buyer.
3. c) We reserve the right to amend prices to those ruling at the date of dispatch including amendments due to currency fluctuation.
4. d) All prices are exclusive of tax, where applicable, which will be charged at the current rate as at the date of dispatch.

3) Terms of Payment

1. a) The price of the goods is due and payable strictly 30 days from the date of invoice, the price is not deemed to have been paid until we are in receipt of cleared funds. Receipts for payment will be issued only upon request.
2. b) The prompt payment of our accounts is a condition precedent of further deliveries and (without prejudice to any other remedies we may have in respect of overdue payments) we reserve the right to charge interest (before as well as after any judgment) at the rate of 6 per cent per annum above the base rate from time to time in force of Bank One on the outstanding indebtedness from the date on which payment becomes due such interest accruing on a daily basis and being payable without the deduction of tax.

4) Delivery

1. a) The time and place of delivery shall be as specified in the Buyer’s order.
2. b) Time for delivery shall not be of the essence unless previously agreed by us in writing and we shall be under no liability for failure to deliver on the specified date or within a specified period.
3. c) Deliveries may in any event be postponed or suspended without liability during any period in which the circumstances in clause 7 hereof prevent the manufacture or dispatch of goods.
4. d) Any claims in respect of errors on our invoice or non-delivery damage or shortage of goods shall (subject to clause 7 below) not be accepted by us unless notified in writing to us within 7 days of the date of the invoice.
5. e) In the event of short delivery our liability shall be limited at our option to making up the delivery or allowing credit in respect thereof.
6. f) If the Buyer fails to take delivery of the goods or fails to give us 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 our fault) then, without prejudice to any other right or remedy available to us, we may: (i) store the goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or (ii) 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) Carriage 

All carriage costs shall be borne by the Buyer unless otherwise agreed.

6) Risk and Retention of Title

1. a) Risk of damage to or loss of the goods shall pass to the Buyer: (i) (in the case of goods to be delivered at our premises) at the time when we notify the Buyer that the goods are available for collection; or (ii) (in the case of goods to be delivered otherwise than at our premises) at the time of delivery or if the Buyer wrongfully fails to take delivery of the goods, at the time when we have tendered delivery of the goods.
2. b) Notwithstanding delivery and the passing of risk in the goods or any other provision of these conditions, title in all goods supplied or sold by us shall be retained by us until all sums due on any account whatsoever from the Buyer have been received by us either in cash or cleared funds. Until such payment the Buyer shall hold the goods as bailee on our behalf and in a fiduciary capacity for us and shall keep the goods separate from those of the Buyer and third parties and properly stored, protected and identified as our property. If any indebtedness on any running account between us and the Buyer is from time to time reduced to nil this reduction shall not be deemed to have passed title to any goods still in the possession of the Buyer at the time of any subsequent default in payment by the Buyer.
3. c) Pending the sale of the goods and payment of all sums due on any account by the Buyer to us the Buyer shall keep the goods insured in the amount of the price at which the goods were supplied to the Buyer against all insurable risks.
4. d) If the goods are destroyed prior to the Buyer making payment in full for them, the Buyer shall receive and hold the proceeds of any insurance monies relating to such goods as our trustee and may at our direction be required to pay over such proceeds to us.
5. e) On the disposal of the goods by the Buyer prior to the payment in full of the purchase price (which the Buyer shall be entitled to do on commercially reasonable terms in the ordinary course of its business as our fiduciary agent) the Buyer shall be liable to account to us for that part of the proceeds of sale thereof (“our part of the proceeds”) which is equivalent to the price at which the same were invoiced to the Buyer by us. The Buyer shall, as our fiduciary agent, pay our part of the proceeds into a separate bank account clearly denoted as an account containing monies deposited for our benefit by the Buyer acting in a fiduciary capacity and shall ensure that such account is never overdrawn. Any such sub-sale by the Buyer shall as between the Buyer and us be effected by the Buyer as our agent but as between the Buyer and sub-purchaser shall be effected by the Buyer as principal. Upon our request the Buyer shall supply us with the details of any sub-sale and shall assign to us any claim or right of action that they have against the sub-purchaser.
6. f) If our goods are incorporated in other goods, whether of the Buyer or of a third party, the Buyer shall have no interest in the product thereof and we shall be the owner of the same solely or (in the case of goods or materials contributed by a third party) in common with that party to the extent of our contribution to the product.
7. g) Until such time as the property in the goods passes to the Buyer (and provided the goods have not been re-sold) we shall be entitled in addition to any and all other rights available to us at any time to require the Buyer to deliver up the goods to us, and if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the goods are stored or thought to be stored and repossess the goods and, if the Buyer has failed to make payment by the due date, also to sue the Buyer for non-payment.
8. h) In the event of us and/or our agents recovering possession of any of the goods in the circumstances referred to in paragraph
9. g) above we shall be entitled to re-sell the goods and if upon re-sale of goods the proceeds of sale exceed the price or the balance of the price of the goods due to us from the Buyer we shall apply the balance of the proceeds of sale as follows: (i) first, reimbursing our costs and expenses of the taking of possession and the sale of the goods; and (ii) second, paying any sums due and owing to other creditors of the Buyer in respect of other items and materials used in connection with the manufacture of goods supplied to the Buyer where the property in such items and materials have, remained vested in such other creditors by reason of effective reservation of title clauses where the claims of such other creditors pursuant to their reservation of title causes have been notified to us by the Buyer or its Receiver, Supervisor, Liquidator, Manager or Administrator or by such other creditors.  (iii) The Buyer shall not be entitled to assign, pledge or charge by way of security for any indebtedness any of the goods or any invoice for the goods which remain our property, but if the Buyer does so all monies owing by the Buyer to us shall (without prejudice to any other of our rights or prejudice whether under these conditions or otherwise) forthwith become due and payable.  (iv) The Buyer shall in no circumstance be deemed to be our agent for any purpose except as may be necessary to give effect to this clause.

7) Warranties and Liability

1. a) Subject to the conditions set out below we warrant that the goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of twelve months from the date of delivery.
2. b) The above warranty is given by us subject to the following conditions: (i) we shall be under no liability in respect of any defect in the goods arising from any drawing, design or specification supplied by the Buyer; (ii) we shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow our instructions (whether oral or in writing), misuse or alteration or repair of the goods without our approval;  (iii) we 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; and   (iv) the above warranty does not extend to parts, materials or equipment not manufactured by us, 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 us.
3. c) 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.
4. d) 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 be notified to us within 30 days of discovery of the defect or failure. To the extent that any loss or damage is apparent at the date of delivery the Buyer shall be obliged to give details on any carrier’s delivery sheet. The Buyer shall promptly return the goods, carriage paid, to our works or to an authorized repairer nominated by us in writing with a full written report on the defect unless we agree in writing to inspect and replace or repair in situ.  If delivery is not refused, and the Buyer does not notify us accordingly the Buyer shall not be entitled to reject the goods and we shall have no liability for such defect or failure, and the Buyer shall be bound to pay the full price for the goods.
5. e) Where any valid claim in respect of any of the goods is based upon any defect in the quality or condition of the goods or their failure to meet specifications notified to us in accordance with these conditions, we shall be entitled to replace the goods (or the part in question) free of charge or, at our sole discretion, refund to the Buyer the price of the goods or (a proportion of the part of the price), and we shall have no further liability to the Buyer.
6. f) Except in respect of death or personal injury caused by our negligence, we shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under any express term agreed between us and the Buyer, for any loss of anticipated profits, damage to the Buyer’s reputation or good will, loss of expected future business, damages, costs or expenses payable by the Buyer to any third party or any other indirect or consequential loss (whether caused by our negligence or the negligence of our employees, agents or otherwise) which arise out of or in connection with the supply of the goods or their use or re-sale by the Buyer, except as expressly provided in these conditions. We shall not be liable to the Buyer for delay in performing or failure to perform any of our obligations in relation to the goods, if the delay or failure is due to any cause or circumstance whatsoever beyond our reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond our reasonable control: (i) Act of God, avalanche, earthquake, explosion, flood, lightning, tempest, tidal wave, fire or accident; (ii) war, hostilities (whether declared or not), sabotage, insurrection, civil disturbance, or requisition;   (iii) acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority (including refusal or revocation of any license or consent);   (iv) import or export regulations or embargo;   (v) theft or malicious damage;   (vi) strikes, lock-outs or other industrial actions or trade disputes (whether involving our employees or employees of a third party);  (vii) difficulties in obtaining raw materials, labor, fuel, parts or machinery or defaults of suppliers or sub-contractors for any reason whatsoever;   (viii) power failure, breakdown of machinery; or   (ix) failure by the Buyer to furnish or supply us with any adequate drawings, parts and materials required to enable us to manufacture the goods.
7. g) If, notwithstanding the foregoing, liability attaches to us then the amount recoverable by the Buyer or any person claiming through the Buyer in respect of any and all breaches shall be further limited in the aggregate to the Price of the Goods supplied.

8) Implied Terms and Limitation Liability

Our liability under these terms and conditions is in lieu and to the exclusion of all other warranties, conditions or obligations imposed or implied by statute or otherwise including but not limited to those in relation to the quality or description of the goods or their fitness for any particular purpose and all liability for any loss of anticipated profits, damage to the Buyer’s reputation or goodwill, loss of expected future business, damages, costs or expenses payable by the Buyer to any third party or any other indirect or consequential loss (whether caused by our negligence or the negligence of our employees, agents or otherwise) is hereby expressly excluded subject always to the provisions of Sections 2(l) and 6 of the Unfair Contract Terms Act 1977 and having regard to our willingness to exchange, repair or replace defective goods under clause 7 above.

9) Indemnity

1. a) The Buyer shall indemnify us against: (i) all claims for infringement or alleged infringement of third parties patent or other industrial property rights and all costs and expenses incurred in connection therewith arising from the execution of the Buyer’s order in accordance with the Buyer’s designs, plans or specifications; and (ii) all claims for personal injury, loss or damage to property brought against us by third parties arising from the use of the goods unless such injury, loss or damage is solely attributable to the negligence of ourselves or our employees; and (iii) loss (including loss of profit), costs (including the cost of all labor and material used), damages, charges and expenses incurred by us as a result of cancellation of an order in accordance with clause 1 b) above.
2. b) If any claim is made against the Buyer that the goods infringe or that their use or re-sale infringes the patent, copyright, design, trade mark or other industrial or intellectual property rights of any person, we shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim paid or agreed to be paid by the Buyer in settlement of the claim, provided that: (i) the Buyer shall immediately inform us of any such claim; (ii) we are given full control of any proceedings or negotiations in connection with any such claim;  (iii) the Buyer shall give us all reasonable assistance for the purposes of any such proceedings or negotiations;   (iv) except pursuant to any final award, the Buyer shall not pay or accept any such claim or compromise any proceedings without our consent (which shall not be unreasonably withheld);   (v) 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 endeavors to do);   (vi) we shall be entitled to the benefit of, and the Buyer shall accordingly account to us for, all damages (if any) awarded in favor of the Buyer which are payable, 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 sum;    (vii) without prejudice to any duty of the Buyer at common law, we shall be entitled to require the Buyer to take such steps as we shall reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which we are liable to indemnify the Buyer under this clause.

10) Confidential Information

1. a) In these conditions “Confidential Information” means all information (not in the public domain) including but not limited to that information concerned with the operation of any process; trade secrets; the manufacture, design or development of the goods; the selection and purchase of any component, part or raw materials; and the construction, repair or maintenance of the goods, existing in whatever form including but not limited to specifications, formulae, computer code, experience, drawings, manuals, component list, instructions, designs and circuit diagrams.
2. b) Unless otherwise specified in our quotation all specifications drawings and particulars of weights and dimensions submitted therewith are approximate only and the descriptions and illustrations contained in our catalogues, price lists and other advertising material are only intended to present a general idea of the goods described therein and none of these shall form part of this contract.
3. c) All Confidential Information submitted with or in connection with our quotation are our copyrights.
4. d) All Confidential information whenever supplied by us shall at all times be treated by the Buyer, its employees, officers, agents and/or subcontractors as confidential and shall not without our written consent be published or communicated to third parties in whole or in part save insofar as may be necessary for the purpose of the operation of the goods.
5. e) The Buyer shall not, and shall procure that its employees, officers, agents and/or subcontractors do not disassemble, reverse-engineer, decompile or otherwise attempt to derive the design, component parts, computer code, raw materials or construction of the goods.

11) Export Terms

1. a) 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 term 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. b) Where the goods are supplied for export from the United States, to the extent that the provisions of this Clause 11 are inconsistent with any other provision of these conditions, the provisions of this Clause 11 shall prevail.
3. c) The Buyer shall be responsible for complying with any legislation or regulation governing the importation of the goods into the country of destination and for the payment of any duties thereon.
4. d) Regardless of any disclosure made by the Buyer to us, the Buyer shall where applicable: (i) not either directly or indirectly export the goods or any product incorporating the goods without first obtaining a license to export or re-export from the United States Government and/or the United States office of Export Administration (the “OEA”); (ii) comply with the export regulation, of the United States Government and/or the OEA.e) Unless otherwise agreed in writing by us the goods shall be delivered Ex Works/FCA
5. f) The Buyer shall be responsible for the arranging and for the testing and inspection of the goods at our premises before shipment. We shall have no liability for any claim in respect of any defect in the goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.

12) Termination

We shall (without prejudice to any other claim or right we might otherwise make or exercise under these conditions) have the right forthwith to terminate this contract immediately and, at our option, cancel or suspend future deliveries (under any contract made between us and the Buyer) to the Buyer if: (i) the Buyer is in breach of any of these conditions or any other contract or order between us and the Buyer or if any distress or execution is levied on the Buyer, the Buyer’s property or assets or the Buyer makes or offers to make any arrangement or composition with his or its creditors or is unable to pay its debts within the meaning of either Section 123 or Section 268 of the Insolvency Act 1986 or if any Statutory Demand, or bankruptcy petition is presented or made by or against the Buyer; or (ii) the Buyer is a limited company and any resolution or petition to wind up such a company’s business is passed or presented otherwise than for voluntary reconstruction or amalgamation or if a Receiver, Administrative Receiver, Supervisor, Liquidator or Administrator of such companies undertaking property or assets or any part thereof is appointed.

13) Severability

If any provision of these conditions is held by a competent authority to be unlawful, 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 thereby and shall continue to be valid and enforceable to the fullest extent permitted by law.

14) Waiver

A failure or neglect to enforce at any time any of these conditions shall not be construed as nor shall be deemed to be a waiver of our rights hereunder nor in any way affect the validity of the whole or any part of these conditions nor prejudice our right to take subsequent action.

15) Right to Withdraw Goods

We reserve the right to withdraw the sale or distribution of any goods without prior notification or liability to the Buyer.

16) Assignment

The Buyer shall not assign any benefit under any contract made with us without our consent in writing, which may if given be on such terms as to guarantee or indemnify or otherwise as we think fit.

17) Governing Law

These Conditions shall be construed in accordance with American law and the parties agree to submit to the non-exclusive jurisdiction of the American Courts as regards any claim or matter arising under these conditions.