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Dated
(1) Non Entry Systems Ltd "Seller"
(2) "Buyer"
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STANDARD TERMS AND CONDITIONS FOR THE SALE OF GOODS
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- Definitions and Interpretations
- In these Conditions:-
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"Business Day" |
means any day other than a Saturday, Sunday or bank
holiday in England; |
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"Buyer" |
means the person who accepts a quotation or offer of
the Seller for the sale of Goods or whose order for the Goods is
accepted by the Seller; |
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"Conditions" |
means the standard terms and conditions of sale set
out in this document and (unless the context otherwise requires)
includes any special terms and conditions agreed in writing between the
Buyer and the Seller; |
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"Contract" |
means the contract for the purchase and sale of the
Goods under these Conditions; |
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"Delivery Date" |
means the date on which the Goods are to be delivered
as stipulated in the Buyer's order and accepted by the Seller; |
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"Goods" |
means the goods (including any instalment of the
goods or any parts for them) which the Seller is to supply in accordance
with these Conditions; |
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"Month" |
means a calendar month; |
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"Seller" |
means Non Entry Systems Ltd a company registered in
Great Britain under number 30502061 whose registered office is at 108
Saunders Way, Sketty, Swansea, SA2 8BJ; |
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"Writing" |
means any communication effected by facsimile
transmission or any comparable means. |
Any reference in these Conditions to a statute or a provision of a statute
shall be construed as a reference to that statute or 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.
Application of Conditions
The Seller shall sell and the Buyer shall purchase the Goods in accordance
with any quotation or offer of the Seller which is accepted by the Buyer, or
any 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.
Incoterms
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.
Basis of Sale
The Seller's employees or agents are not authorised to make any
representations or claims 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 beach of, any such
representations which are not so confirmed.
No variation to these Conditions shall be binding unless agreed in writing
between the authorised representations of the Buyer and the Seller.
Sales literature, price lists and other documents issued by the Seller in
relation to the Goods are subject to alteration without notice and do not
constitute offers to sell the Goods that are capable of acceptance. An order
placed by the Buyer may not be withdrawn cancelled or altered prior to
acceptance by the Seller. No contract for the sale of Goods shall be binding
on the Seller unless the Seller has issued a quotation which is expressed to
be an offer to sell the Goods; or has accepted an order placed by the Buyer,
by whichever is the earlier of:-
- the Seller's written acceptance;
- delivery of the Goods; or
- the Seller's invoice.
Any typographical, clerical or other accidental errors or omissions 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.
Orders and Specifications
No order submitted by the Buyer shall be deemed to be accepted by the
Seller unless and until confirmed in writing by an authorised representative
of the Seller.
The specification for the Goods shall be those set out in the Seller's
sales documentation unless varied expressly in the Buyer's order (if
accepted by the Seller). The Goods will only be supplied in the minimum
units (or multiples) stated in the Seller's price list or in multiples of
the sales outer as specified. Orders received for quantities other than
these will be adjusted accordingly. Illustrations, photographs or
descriptions whether in catalogues, brochures, price lists or other
documents issued by the Seller are intended as a guide only and the contents
shall not be binding on the Seller.
The Seller reserves the right to make any changes in the specification of
the Goods which are required to conform with any applicable safety or other
statutory or regulatory 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.
Price of the Goods
The price of the Goods shall be the price listed in the Seller's published
price list current at the date of acceptance of the Buyer's order or such
other price as may be agreed in writing by the Seller and the Buyer.
Where the Seller has quoted a price for the Goods other than in accordance
with the Seller's published price list the price quoted shall be valid for
30 Days only or such other time as the Seller may specify.
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 or alteration of duties, 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.
The Buyer undertakes not to offer the goods for resale in any country (not
being member states of the European Community or Efta) notified by the
Seller to the Buyer at or before the time the Buyer's order is placed, or to
sell the Goods to any person if the Buyer knows or has reason to believe
that that person intends to resell the Goods in any such country.
The price is exclusive of any applicable value added tax excise, sales or
taxes or levies of a similar nature which are imposed or charged by any
competent fiscal authority in respect of the Goods, which the Buyer shall be
additionally liable to pay to the Seller.
The cost of pallets and 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 at the Buyer's expense undamaged to the
Seller.
Terms of Payment
Subject to any special terms agreed in writing between the Buyer and the
Seller, the Seller shall invoice the Buyer for the net sum due the goods on
or at any time after despatch of the Goods.
Invoices are based on the quantity and condition of goods and at weights
established by the Seller when the Goods leave the Seller's factory or
warehouse.
The Buyer shall pay the price of the Goods on the payment date stated in
the Contract or if no express provision for the time of payment is contained
in the Contract within 30 Days after the date of invoice notwithstanding
that delivery may not have taken place and/or that 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.
All payments shall be made to the Seller in the currency of the price
stated in the Contract at its office as indicated on the form of acceptance
or invoice issued by the Seller without any deduction credit or set off
whatsoever.
The Seller is not obliged to accept orders from any customer or buyer who
has not supplied the Seller with references satisfactory to the Seller; if
at any time the Seller is not satisfied as to the creditworthiness of the
Buyer it may give notice in writing to the Buyer that no further credit will
be allowed to the Buyer in which event the Buyer shall be required to give
security deposits in respect of goods already shipped and no further goods
will be delivered to the Buyer other than against cash payment and
notwithstanding any payment terms contained in the Contract all amounts
owing to the Buyer to the Seller shall be immediately payable in cash.
Delivery
Delivery of the Goods shall take place and risk in the Goods will pass in
accordance with Incoterms, where applicable, otherwise delivery of the Goods
shall be made by the Seller tendering bills or other appropriate documents
of lading or by delivering the Goods to the place specified in the Buyers
orders and/or the Seller's acceptance as the location to which the Goods are
to be delivered by the Seller or if no place of delivery is so specified by
the Buyer collecting the Goods at the Seller's premises at any time after
the Seller has notified the Buyer that the Goods are ready for collection.
Goods despatched by post will be delivered when the Goods are accepted by
the post office in the United Kingdom.
Unless otherwise agreed in writing by the Buyer and the seller shipment
and insurance of all Goods ordered f.o.b. or f.a.s will be arranged by the
Seller on behalf of the Buyer and all charges shall be paid by the Buyer.
The Seller shall endeavour to comply with the shipping instructions given
by the Buyer with its order for the Goods but the Seller reserves the right
to make part shipments and to ship by vessels of the Seller's choice from
any port in the United Kingdom or elsewhere.
Where the Buyer is to provide a vessel for shipment the Seller shall not
be responsible for any charges resulting from failure by the Buyer to give
due notice of the vessel's time of arrival.
The Delivery Date is approximate only and 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 Delivery Date upon giving
reasonable notice to the Buyer. If the Seller delivers the Goods at any time
after the Delivery Date the Seller shall have no liability in respect of
such late delivery.
Where delivery of the Goods is to be made by the Seller in bulk measured
by weight, the Seller reserves the right to deliver up to three per cent
more or three per cent less than the quantity ordered without any adjustment
in the price, and the quantity so delivered shall be deemed to be the
quantity ordered.
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.
If the Buyer fails to take delivery of the Goods or any part of them on
the Delivery Date and/or fails to provide any instructions, documents,
licences, consents or authorisations required to enable the Goods to be
delivered on that date, the Seller shall be entitled upon giving written
notice to the Buyer to store or arrange for the storage of the Goods and
then notwithstanding the provision of Clause 10.1 of these Conditions risk
in the Goods shall pass to the Buyer, delivery shall be deemed to have taken
place and the Buyer shall pay to the Seller all costs and expenses including
storage and insurance charges arising from such failure.
The Seller shall not be liable for any costs incurred for whatever reason
after delivery of the Goods is deemed to have taken place. Where Goods are
sold inclusive of any or all of the freight, handling, port or insurance
charges, any increases in, or in the rates for, such charges arising after
the date of the Contract and before the Goods are delivered or arising
through deviation to a new port or airport necessarily or at the Buyer's
request or through any delay however caused shall be for the Buyer's account
subject to the absolute discretion of the Seller. Port surcharges and other
incidental charges are not included in the freight rate will be for the
Buyer's account.
Import or customs duty or other official taxes or charges arising from or
necessary to enable delivery of the Goods shall be for the Buyer's account
and shall be reimbursed forthwith where necessarily paid by the Seller.
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 delivery or 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
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.
Insurance
Unless otherwise expressly agreed in writing by the Buyer and the Seller,
Goods sold c.i.f. will be insured from time to time the Goods leave the
warehouse or place of storage at the commencement of transit, throughout the
ordinary course of transit and until:-
- delivery to the Buyer's or other final warehouse or place of storage at
the destination named in the Buyer's order;
- delivery to any other warehouse or place of storage whether prior to
delivery at the destination named in the Buyer's order or acknowledgement
or order which the Buyer may elect to use either:
- for storage other than in the ordinary course of transit; or
- for allocation or distribution;
- the expiry of 60 days after completion of discharge over side of the
Goods from the overseas vessel at the final port of discharge or on the
expiry of 30 days after unloading the Goods insured from an aircraft at
the final place of discharge, whichever shall first occur.
Insurance on Goods sold c.i.f. shall be effected by the Seller on behalf
of and in the name of the Buyer and shall be for the c.i.f. value of the
Goods plus ten per cent (or such other percentage as may have been agreed in
writing between the parties) against all marine and marine war and other
marine risks (or air, air war or other air risks where appropriate). All
special risks involved in the carriage of the Goods shall be for the Buyer's
account. Claims are payable abroad and are to be made by the Buyer on the
overseas agent of the Seller's insurers.
All costs arising from the insurance being effected by the Buyer's request
on Goods sold other than c.i.f. shall be for the Buyer's account.
Risk and Property
Risk of damage to or loss of the Goods shall pass to the Buyer in
accordance with the relevant provision of Incoterms or where Incoterms do
not for any reason apply:-
- in the case of Goods to be delivered at the Seller's premises, the time
when the Seller notifies the Buyer that the Goods are available for
collection; or
- in the case of Goods to be delivered otherwise than at the Seller's
premises, the time of delivery or, if the Buyer wrongfully fails to take
delivery of the Goods, the time when the Seller has tendered delivery of
the Goods.
Notwithstanding delivery and the passing of risk in the Goods, or any
other provision of these Conditions, the property in the Goods shall not
pass to the Buyer until the Seller has received in cash or cleared funds
payment in full of the price of the Goods and all other goods agreed to be
sold by the Seller to the Buyer for which payment is then due.
The Buyer shall not be entitled to pledge or in any way charge by way of
security for any indebtedness any of the Goods which remain the property of
the Seller, but if the Buyer does so all money owing by the Buyer to the
Seller shall (without prejudice to any other right or remedy of the Seller)
forthwith become due and payable.
Warranties and Liability
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 be
of satisfactory quality.
The Buyer shall be responsible for arranging for testing and inspection of
the Goods at the Seller's premises before shipment. The Seller 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.
The Seller shall be under no liability in respect of any defect arising
from fair wear and tear, or any wilful damage, negligence, subjection to
abnormal conditions, failure to follow the Seller's instructions (whether
oral or in writing), misuse or alteration of the Goods without the Seller's
approval, or any other act or omission on the part of the Buyer, its
employees or agents or any third party.
The mixing or use of the Goods is beyond the Seller's control and
accordingly all conditions and warranties, statutory or otherwise, as to
fitness of the Goods for any particular purpose are expressly excluded.
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.
No Goods may be returned to the Seller without the prior agreement in
writing of the Seller. Subject thereto any Goods returned which the Seller
is satisfied were supplied subject to defects of quality or condition which
would not be apparent on inspection may be replaced free of charge or, at
the Seller's sole discretion the Seller may refund or credit to the Buyer
the price of the defective Goods but the Seller shall have not further
liability to the Buyer.
Except as expressly provided in these Conditions, the Seller 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
statute, or under the express terms of the Contract, for any direct or
consequential loss or damage sustained by the Buyer (including, without
limitation, loss of profit or indirect or special loss), costs, expenses or
other claims for consequential compensation whatsoever (and whether caused
by the negligence of the Seller, its servants 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.
The Buyer shall ensure that, except to the extent that instructions as to
the use or sale of the Goods are contained in the packaging or labelling of
the Goods, any use or sale of the Goods by the Buyer is in compliance with
all applicable statutory and other regulatory requirements and that the
storage and handling of the Goods by the Buyer is carried out in accordance
with directions given by the Seller or any competent governmental or
regulatory authority and the Buyer will indemnify the Seller against any
liability loss or damage which the Seller might suffer as a result of the
Buyer's failure to comply with this condition.
Buyer's Default
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 order 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);
- charge the Buyer interest (both before and after any judgment) on the
amount unpaid, at the rate of 2.5 per cent per month, until payment in full is made (a part of a month being treated as
a full month for the purpose of calculating interest); and
- where the price is to be paid in a currency other than Sterling charge
to the Buyer the reduction in the amount of pounds sterling receivable by
the Seller on conversion of the proceeds by the Seller's bankers as a
result of variations in the rate of exchange between the due date and the
date of actual payment.
This Condition applies if:-
- the Buyer fails to perform or observe any of its obligations hereunder
or is otherwise in breach of the Contract; or
- the Buyer becomes subject to an administration order or makes any
voluntary arrangement with its creditors (within the meaning of the
Insolvency Act 1986) or (being an individual or firm) becomes bankrupt or
(being a company) goes into liquidation; or
- an encumbrancer takes possession, or a receiver is appointed, of any of
the property or assets of the Buyer; or
- the Buyer ceases, or threatens to cease, to carry on business; or
- the Seller reasonably apprehends that any of the events mentioned above
is about to concur in relation to the Buyer and notifies the Buyer
accordingly.
If Condition 12.2 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 no paid for
the price shall become immediately due and payable notwithstanding any
previous agreement or arrangement to the contrary.
Confidentiality, Publications and Endorsements
The Buyer undertakes to the Seller that:-
- the Buyer will regard as confidential the Contract and all information
obtained by the Buyer relating to the business and/or products of the
Seller and will not use or disclose to any third party such information
without the Seller's prior written consent provided that this undertaking
shall not apply to information which is in the public domain other than by
reason of the Buyer's default;
- the Buyer will not use or authorise or permit any other person to use
any name, trade mark, house mark, emblem or symbol which the Seller is
licensed to sue or which is owned by the Seller upon any premises,
notepaper, visiting cards, advertisements or other printed matter or in
any other manner whatsoever unless such use shall have been previously
authorised in writing by the Seller and (where appropriate) its licensor;
- the Buyer will use all reasonable endeavours to ensure compliance with
this condition by its employees, servants and agents. This Condition shall
survive the termination of the Contract.
General
When placing the order the Buyer must advise the Seller in writing of any
special, legal, administrative or regulatory requirements applying in the
territory in which the Buyer is to import, use or sell the Goods as to
composition labelling distributors or sale of the Goods and the Buyer must
advise the Seller immediately of any change made in such requirements.
The Buyer shall be responsible for complying with any legislation or
regulations governing the importation of the Goods into the country of
destination and for the payment of any duties thereon.
The Buyer may not assign the benefit of the Contract without the written
consent 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 provision in
question shall not be affected thereby.
Applicable Law and Jurisdiction
The Contract shall be governed by the laws of England.
The Uniform Laws on the International Sale of Goods laid down in the 1980
United Nations Convention shall not apply unless expressly agreed between
the parties in writing.
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