1. Interpretation
1.1 In these Conditions the following words have the following meanings:
| “Buyer” | the person(s) or company whose Purchase Order for Goods and/or the supply of Services is accepted by the Seller; |
| “Conditions” | the terms and conditions of sale set out in this document; |
| “Contract” | any contract between the Seller and the Buyer for the sale and purchase of the Goods and/or supply of the Services formed in accordance with Condition 2; |
| “Delivery Point” | the place where delivery of the Goods is to take place under Condition 5; |
| “Goods” | any goods which the Seller is to supply to the Buyer (including any part or parts of the goods); |
| “Intellectual Property Rights” | all intellectual and industrial property rights including, without limitation, patents, rights in know-how, trade marks, service marks, registered designs, models, unregistered design rights (inc. tooling), unregistered trade marks, unregistered service marks, copyright (whether in drawings, plans, specifications, designs and computer software or otherwise), database rights, topography rights, any rights in any invention, discovery or process, and applications for and rights to apply for any of the foregoing, in each case in the Seller’s country and all other countries in the world; |
| “Material” | such material, goods or property to be supplied by the Buyer to the Seller for the provision of Goods and/or Services under a Contract as agreed between the parties and specified in the Seller’s written acknowledgement of the Purchase Order; |
| “Purchase Order” | the Buyer’s written order for Goods and/or Services; |
| “Price” | the price for the Goods and/or Services as referred to in Condition 4; |
| “Quotation” | any written quotation given to the Buyer by the Seller for any Goods and/or Services; |
| “Seller” | RMIG LTD (registered in England and Wales under Company number 00999363); |
| “Services” | any services which the Seller provides to the Buyer (including all of them or any part of them) under a Contract. |
| “Service Point” | the Seller’s premises at Adlington Court, Risley Road, Warrington, Cheshire WA3 6PL |
1.2
Any reference in these Conditions to any provision of statute or a statutory instrument shall (unless otherwise specified) be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3
Any reference in these Conditions to the neuter shall include the masculine and feminine and the singular shall include the plural if the context so requires.
1.4
Any reference in these Conditions to “the Seller's negligence” shall be construed as including a
reference to “the negligence of anyone for whom the Seller is vicariously liable”.
2. Formation and incorporation
2.1
Subject to any variation under Condition 2.4, each Contract will be upon and subject to these Conditions to the exclusion of all other terms and conditions and all previous oral or written representations (including any terms or conditions which the Buyer purports to apply under any Purchase Order, confirmation of order, applicable specification or similar document).
2.2
Each Purchase Order shall be deemed to be an offer by the Buyer to purchase Goods and/or Services subject to these Conditions.
2.3
No terms or conditions endorsed upon, delivered with or contained in the Buyer’s Purchase Order (including, without limitation, any applicable specification or similar document) will form part of the Contract simply as a result of a reference to such document in the Contract.
2.4
Any variation to these Conditions and any representations about the Goods and/or Services shall not have effect unless expressly agreed in writing and signed by the Seller.
2.5
Acceptance of delivery of the Goods or commencement of the performance of the Services by the Seller will be deemed to be conclusive evidence of the Buyer’s acceptance of these Conditions.
2.6
The Buyer must ensure that the terms of its Purchase Order (including any applicable specification or similar document) are complete and accurate.
2.7
It is the responsibility of the Buyer to ensure that any Material supplied by the Buyer under each Contract is suitable for the Buyer’s intended purpose and the Seller shall have no liability for any loss, liability, costs, claims or expenses arising out of or in connection with any Material supplied if the Material is defective, or does not conform to any applicable specification, or is not of satisfactory quality or fit for the Buyer’s intended purposes.
2.8
Any Quotation is given on the basis that no Contract will come into existence unless and until the Seller despatches a written acknowledgement of the Purchase Order to the Buyer. Any Quotation is valid for such a period of time as specified in the Quotation, or, if not specified in the Quotation for a period of 7 (seven) days only from the date of the Quotation provided the Seller has not previously withdrawn it.
2.9
Any quotation, calculation, plan and advice given, is given free of charge, without liability and to the best of our knowledge. However, we reserve the right to charge for such services where we do not gain the said order.
2.10
Any Purchase Order which the Seller has accepted may not be cancelled by the Buyer except with the written agreement of the Seller and on terms that the Buyer shall indemnify the Seller in full against any loss, costs, damages, charges and expenses suffered or incurred directly or indirectly by the Seller as a result of such cancellation.
3. Description
3.1
All drawings, descriptive matter, applicable specifications and advertising issued by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and/or provision of the Services described in them and will not form part of the Contract.
3.2
The Seller may make any changes to any applicable specification, design, materials or finishes of the Goods and/or provision of the Services which are required to conform with any applicable safety or other statutory requirements or regulatory requirements or which it deems desirable and which do not materially affect the quality or performance of the Goods.
3.3
Any variation in the applicable specification or design of any Goods and/or provision of the Services which, in the Seller’s reasonable opinion, does not adversely affect the suitability of the Goods and/or Services for the particular purpose for which the Goods and/or Services are supplied by the Seller, will not constitute a breach of the Contract or impose any liability upon the Seller.
4. Price
4.1
The Price shall be the price set out by the Seller in the Quotation and will be subject to Condition 4.2.
4.2
The Price will be valid for such period of time as specified by the Seller in the Quotation, or, if not specified in the Quotation for a period of 7 (seven) days from the date of the Quotation. Thereafter the Price shall be as specified in any subsequent Quotation. The Price will apply only to the quantities of Goods and/or Services quoted therein and provided that:
4.2.1
the Seller has not previously withdrawn the Quotation; and
4.2.2
the Buyer has placed the Purchase Order with the Seller within such period of time as specified by the Seller in the Quotation, or, if not specified in the Quotation within a period of 7 (seven) days from the date of the Quotation and the Seller has dispatched a written acknowledgement of the Purchase Order to the Buyer; and
4.2.3
such Goods and/or Services are available from the Seller at the time the Buyer’s Purchase Order is placed with the Seller.
4.3
The Seller may by giving notice to the Buyer at any time up to 14 (fourteen) days before delivery increase the price of the Goods and/or Services to reflect any increase in the cost of manufacture, processing or distribution of the Goods and/or Services which is due to:
4.3.1
any factor beyond the reasonable control of the Seller including, without limitation, foreign exchange fluctuation, currency regulation, alteration of duties and taxes, increase in cost of labour, materials and other manufacturing costs and transport costs; and/or
4.3.2
any change in delivery dates, quantities or any applicable specifications for the Goods and/or Services requested by the Buyer; and/or
4.3.3
any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.4
The Price is exclusive of any value added tax or any other applicable tax which the Buyer shall pay in addition when it is due to pay for the Goods and/or Services.
4.5
The Price for the Goods is given on an ex-works basis and where the Delivery Point is other than at the Seller’s place of business the Buyer shall pay the Seller’s additional charges for transport, packaging, loading and insurance when it is due to pay for the Goods.
4.6
All data stated in price lists etc. are only intended as a guide.
4.7
If no special arrangements have been made (and confirmed in writing), all orders are booked at the current prices on the date of order acceptance.
4.8
For product and services of special manufacture the Seller reserves the right to a quantitative margin of +/- 10% in the delivery and thus invoicing.
5. Delivery
5.1
Delivery of the Goods shall be made ex-works as defined in INCOTERMS 2000, unless the Delivery Point is otherwise agreed between the Seller and the Buyer in accordance with Condition 5.5. The Services shall be performed at the Service Point and in accordance with the Quotation and /or acknowledgement of Purchase Order.
5.2
The Buyer will take delivery of the Goods within 7 (seven) days of the Seller giving it notice that the Goods are ready for delivery if delivery is made ex-works under Condition 5.1. The Buyer must accept delivery of the Goods and pay for them in full.
5.3
Delivery of the Goods and/or performance of the Services shall be during the Seller’s usual business hours.
5.4
Any dates specified by the Seller for delivery of the Goods and/or performance of the Services are approximate only and may not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
5.5
If so agreed in accordance with Condition 5.1, the Goods shall be delivered to the Buyer’s business premises or to such other address or third party’s business premises as specified by the Buyer in the Purchase Order by such means as the Seller thinks fit unless the Buyer has specified in its Purchase Order the details of the contract with a carrier which it reasonably requires shall be used having regard to the nature of the Goods and the other circumstances of the case. The Buyer accepts that where the Seller appoints a carrier for the carriage of the Goods in accordance with this Condition 5.5, the Seller does so as the Buyer’s agent.
5.6
The carrier shall be deemed to be the Buyer’s agent except for the purposes of sections 44, 45, and 46 of the Sale of Goods Act 1979.
5.7
The Seller will use reasonable endeavours to deliver the Goods and/or perform the Services in accordance with Condition 5.4. If, despite those endeavours, the Seller is unable for any reason to fulfil any delivery of the Goods and/or performance of the Services on the specified date, the Seller will be deemed not to be in breach of the Contract, nor (for the avoidance of doubt) will the Seller have any liability to the Buyer for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss) howsoever caused (including as a result of negligence) by any delay or failure in delivery except as set out in this Condition 5.7.
5.8
If the Buyer fails to take delivery of the Goods within 7 (seven) days of the Seller giving notice they are ready for delivery (if delivery is ex-works) or to accept delivery (if delivery is other than ex-works) or to provide any instructions, documents, licences or authorisations required to enable the Goods to be delivered and/or the Services to be performed on time the Goods and/or Services will be deemed to have been delivered or performed on the due date and (without prejudice to its other rights) the Seller may:
5.8.1
store or arrange for the storage of the Goods until actual delivery or sale and charge the Buyer for all related costs and expenses (including, without limitation, storage and insurance); and/or
5.8.2
following written notice to the Buyer, sell any of the Goods at the best price reasonably obtainable in the circumstances and charge the Buyer for any shortfall below the Price.
5.9
If so agreed in accordance with Condition 5.1, the Buyer shall provide at its expense at the agreed Delivery Point adequate and appropriate equipment and manual labour for off-loading the Goods. The Buyer will indemnify the Seller against any liability and expense (whether arising under statute or common law) caused by the Buyer's failure to provide appropriate equipment and manual labour for off-loading the Goods (whether or not the off-loading is supervised by or on behalf of the Buyer) for:
5.9.1
any personal injury to or death of any of the Seller's employees, agents or sub-contractors or any third party; and/or
5.9.2
any damage to or loss of any property of the Seller, its employees, agents or sub-contractors or any third party.
5.10
The Seller may make delivery of the Goods by instalments. Each separate instalment shall be invoiced and paid for in accordance with the Contract. Failure by the Seller to deliver any one or more (but not all) instalments in accordance with a Contract or any claim by the Buyer in respect of any one or more (but not all) instalments shall not entitle the Buyer to treat that Contract as repudiated.
5.11
Failure by the Buyer to pay for any one or more instalments in accordance with the Contract shall entitle the Seller (without prejudice to its other rights and remedies):
5.11.1
to suspend without further notice deliveries of Goods or goods under any other contract between the Seller and the Buyer pending payment by the Buyer; and/or
5.11.2
to treat that Contract as repudiated by the Buyer.
5.12
The quantity of any consignment of Goods as recorded by the Seller upon despatch from the Seller's place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.13
The Seller shall not be liable for any non-delivery of Goods or failure in performance of the Services (even if caused by the Seller's negligence) unless written notice is given to the Seller within 14 (fourteen) days of the date when the Goods would in the ordinary course of events have been delivered or performance of the Services would have taken place.
5.14
Any liability of the Seller for non-delivery of the Goods and/or failure in performance of the Services shall be limited to replacing the Goods and/or performing the Services within a reasonable time or at the option of the Seller, issuing a credit note against any invoice raised for such Goods and/or Services which have been paid by the Buyer.
5.15
A signature of qualified acceptance on a carrier's delivery note shall not be written notice to either the carrier or the Seller for the purpose of these Conditions.
6. Payment
6.1
The Seller may invoice the Buyer for the Goods and/or the Services at any time after delivery or deemed delivery.
6.2
Time for payment shall be of the essence.
6.3
Payment of the Price is due in Sterling within 30 (thirty) days from the date of invoice unless otherwise agreed by the Seller in writing.
6.3.1
Payments made on specific dates to suit the ‘buyer’ must not extend beyond the agreed payment terms.
6.4
No payment shall be deemed to have been received until the Seller has received cleared funds.
6.5
All payments payable to the Seller under the Contract shall become due immediately upon termination of the Contract despite any other provision.
6.6
All payments to be made by the Buyer under the Contract shall be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature, unless the Buyer is required by law to make any such deduction or withholding.
6.7
The Seller may appropriate any payment made by the Buyer to the Seller to such of the Goods as the Seller thinks fit despite any purported appropriation by the Buyer.
6.8
If the Buyer fails to make any payment under the Contract on the due date then (without prejudice to its other rights and remedies):
6.8.1
the Seller may charge the Buyer interest (both before and after judgement) on the amount unpaid at the annual rate of 3 (three) % above the Seller’s banks base rate from time to time until payment is made in full (a part of a month being treated as a full month for the purpose of calculating interest); and
6.8.2
the Seller shall be entitled to suspend performance of any of the obligations under a Contract until the outstanding amount has been received by the Seller from the Buyer.
6.8.3
the Seller may charge a minimum of €25 (twenty five) and maximum of 10% of the total invoice value to cover internal debt collection expenses.
7. Risk / ownership
7.1
Risk of damage to or loss of Goods shall pass to the Buyer when the Goods are placed at the disposal of the Buyer at the Seller’s premises, or, where carriage is agreed in accordance with Condition 5.1 immediately prior to the Goods being loaded on to the carrier’s vehicle on behalf of the Buyer at the Seller’s premises.
7.2
Ownership of the Goods shall not pass to the Buyer until the Seller has received in full (in Sterling and in cash or cleared funds) all sums due to it in respect of:
7.2.1
the Goods and/or the Services; and
7.2.2
all other sums which are or which become due to the Seller from the Buyer on any account.
7.3
Until ownership of the Goods has passed to the Buyer, the Buyer must:
7.3.1
hold the Goods on a fiduciary basis as the Seller’s bailee; and
7.3.2
store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller’s property; and
7.3.3
not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
7.3.4
maintain the Goods in satisfactory condition insured on the Seller’s behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request the Buyer shall produce the policy of insurance to the Seller; and
7.3.5
hold the proceeds of the insurance referred to in Condition 7.3.4 on trust for the Seller and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
7.4
The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
7.4.1
any sale shall be effected in the ordinary course of the Buyer’s business at full market value and the Buyer shall account to the Seller accordingly; and
7.4.2
any such sale shall be a sale of the Seller’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
7.5
Where the Seller is unable to determine whether any goods of the Buyer are the Goods, the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer.
7.6
The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.
7.7
The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
7.8
On termination of the Contract, howsoever caused, the Seller’s (but not the Buyer’s) rights contained in this Condition 7 will remain in effect.
8.Quality
8.1
Warranty
8.1.1
The Seller warrants that (subject to the other provisions of these Conditions) the Goods will at the time of delivery:
8.1.1.1
be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
8.1.1.2
be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer has made known that particular purpose to the Seller in writing and the Seller has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgment of the Seller.
8.1.2
The Seller will, free of charge, within a period of 6 (six) months from the date of delivery (or deemed delivery under Condition 5.8) of Goods or performance of Services at the option of the Seller, repair or replace Goods (or the relevant part of the Goods) or re-perform such Services or refund the purchase price of Goods or Services which are proved to the reasonable satisfaction of the Seller to have been at the time of delivery in breach of the warranty given by the Seller in 8.1.1. This obligation will not apply where:
8.1.2.1
any damage or defect is directly or indirectly caused by the Material supplied by Buyer; or
8.1.2.2
the Goods have been altered in any way whatsoever, or have been subject to misuse or unauthorised repair; or
8.1.2.3
the Buyer failed to follow the Seller’s oral or written instructions as to use, storage, installation, maintenance requirements of the Goods or (if there are none) good trade practice; or
8.1.2.4
the defect in the Goods and/or Services performed arises from any defect in any design, drawing, applicable specification or instruction supplied or approved by the Buyer; or
8.1.2.5
the Buyer has failed to notify the Seller of any damage or defect or suspected damage or defect within 3 (three) days of delivery where the defect should be apparent on reasonable inspection, or within 3 (three) days of the same coming to the knowledge of the Buyer where the defect is not one which should be apparent on reasonable inspection, and in any event no later than 30 (thirty) days from the date of delivery; or
8.1.2.6
the Buyer has failed to give the Seller a reasonable opportunity of examining such Goods, or has failed to return (if asked to do so by the Seller) such Goods to the Seller‘s place of business at the Buyer’s expense for the examination to take place there, after being asked by the Seller to do so.
8.1.3
Condition 8.1.2 shall be the Buyer’s sole remedy for any breach of the warranty given by the Seller in Condition 8.1.1 and if the Seller complies with Condition 8.1.2 the Seller shall have no further liability for a breach of warranty in Condition 8.1.1 in respect of the quality of the Goods and/or Services and fitness for purpose for which the Goods are bought.
8.1.4
Any Goods repaired or replaced by the Seller or Services re-performed by the Seller in accordance with this Condition 8 will be supplied in accordance to these Conditions. Any Goods which have been replaced or for which the purchase price has been refunded to the Buyer by the Seller will belong to the Seller.
8.2
Indemnity and Limitation of Liability
8.2.1
The Buyer shall indemnify the Seller against all liability, actions, proceedings, costs, claims, damages or demands in any way connected with any Contract brought or threatened to be brought against the Seller by any third party except to the extent the Seller is liable to the Buyer in accordance with these Conditions.
8.2.2
Subject to Conditions 8.1.1, 8.1.2 and 8.1.3 and to the maximum extent permissible in law, all conditions and warranties which are implied by statute or otherwise by general law into any Contract or relating to the Goods are hereby excluded.
8.2.3
The Seller does not exclude its liability to the Buyer for:
8.2.3.1
death or personal injury caused by the negligence of the Seller; and/or
8.2.3.2
any breach of its obligations implied by Section 12 of the Sale of Goods Act 1979 or section 2 Sale and Supply of Goods and Services Act 1982; and/or
8.2.3.3
fraudulent misrepresentation.
The buyer's attention is in particular drawn to the provisions of condition 8.2.4
8.2.4
Subject to Condition 8.2.3:
8.2.4.1
the Seller’s total liability arising in connection with the performance or contemplated performance of a Contract by reason of any breach of contract or breach of statutory duty or tort (including but not limited to negligence) or any failure to perform or delay in performing any obligations by the Seller under a Contract shall be limited to the price of the Goods and/or Services under that Contract or where the Seller has exercised its right to make deliveries by instalments the Seller’s liability will be limited to the relevant instalment value; and
8.2.4.2
the Seller shall not be liable by way of indemnity or by reason of any breach of contract or of statutory duty, by reason of tort (including but not limited to negligence) for any loss of profit, loss of use, loss of production, loss of contracts, loss of goodwill or for any financial or economic loss or for any indirect or consequential damage whatsoever that may be incurred or suffered by the Buyer.
9.Buyer's material
9.1
In respect of any Purchase Order the Buyer is required to supply to the Seller such amounts of Material as agreed between the parties and specified in the Seller’s written acknowledgement of the Purchase Order.
9.2
The parties agree that the Material supplied by the Buyer to the Seller shall at all times be held at the Buyer's risk as regard loss or damage howsoever arising.
9.3
In addition to any right of lien to which the Seller may by law or the terms of these Conditions be entitled the Seller shall be entitled to a general lien in respect of all such Material in the Seller's possession whether paid for or not.
9.4
The Seller shall have the right to put any Material over which it has a lien into a saleable state by any means whatsoever (without prior notice to the Buyer) and to sell such Material whether by private treaty or otherwise on such terms as the Seller may agree at the Seller's sole discretion. Out of the proceeds of the sale the Seller shall be entitled to retain a sum equivalent to all unpaid monies due to it from the Buyer together with the cost of putting the Material into a saleable state and the expense of the sale and the balance shall be paid to the Buyer.
10. Burrs and offcuts
All punchings, burrs and other offcuts whether from Material supplied by the Buyer or not, shall be the Seller’s property unless otherwise agreed in writing by the parties.
11. Tolerances and margins
11.1
Sheet and plate sizes shall be supplied by the Seller to the usual commercial tolerances of the perforating trade unless agreed otherwise in writing between the parties and specified by the Buyer in each Purchase Order.
11.2
Unless otherwise agreed between the parties and specified by the Buyer in each Purchase Order, the Seller will supply standard size sheets.
11.3
Where specific margins are required by the Buyer in accordance with Condition 11.2 these will be supplied subject to the usual commercial tolerances of the perforating trade.
12. Intellectual property rights
12.1
Where the Goods and/or Services or any part of them are manufactured or any process is to be applied to the Goods and/or Services by or on behalf of the Seller to any applicable specification of the Buyer then the Buyer shall indemnify the Seller against all liability, actions, proceedings, costs, claims, damages or demands in any way connected with the Contract brought or threatened to be brought against the Seller by any third party as a result of the infringement or alleged infringement of any third party’s Intellectual Property Rights. If any such claim is brought or threatened against the Seller then the Seller shall be entitled to suspend deliveries of the Goods.
12.2
All information of any kind (including, without limitation, drawings, any applicable specifications, plans, descriptions, blue prints, designs, tooling, documents and technical information) supplied by the Seller to the Buyer is supplied on the strict understanding that the Intellectual Property Rights (and all new Intellectual Property Rights) therein and in the Goods and/or Services are vested in and shall remain the sole property of the Seller. If the Buyer shall in any way acquire such Intellectual Property Rights then the Buyer shall immediately inform the Seller and shall take such immediate steps as may be required by the Seller to assign such Intellectual Property Rights or vest title in such Intellectual Property Rights in the Seller.
12.3
The Seller shall have the right to publish descriptive articles relating to the Goods and/or Services with or without illustrations either on its own account without the consent of the Buyer or in conjunction with the Buyer unless otherwise agreed in writing between the parties.
13. Force majeure
13.1
The Seller shall not be liable to the Buyer or be deemed in breach of the Contract because of any delay in performing or failing to perform any of its obligations under the Contract if delay or failure was due to any cause beyond the Seller’s reasonable control.
13.2
Without prejudice to the generality of Condition 13.1, the following shall be included as causes beyond the Seller’s control:
13.2.1
inability to secure labour, fuel, parts, machinery, materials or supplies; or
13.2.2
acts of God, war, threat of war, riots, national emergency, sabotage, requisition, acts of terrorism or civil disturbance; or
13.2.3
fire, flood, explosion, epidemic, drought or accident, legislation, import or export regulations or embargoes, requisitioning or other act or order by any government department council or other duly constituted authority; or
13.2.4
strikes, lockouts, labour disputes involving employees of the Seller or default of suppliers or sub-contractors.
13.3
The Seller reserves the right to suspend deliveries wholly or partly and the Seller shall be entitled to a reasonable extension of time for performing its obligations under the Contract.
14. Termination
14.1
Each Contract will terminate immediately upon the happening of any one or more of the following events: the Buyer has a bankruptcy order made against him or makes any arrangement or composition with his creditors or (being a body corporate) convenes a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or compulsory), except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver, manager, administrator or administrative receiver appointed over its undertaking and assets or any part thereof, or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer.
14.2
Each Contract will terminate immediately upon service of written notice of termination by the Seller on the Buyer on the happening of any one or more of the following: the Buyer suffers or allows any execution whether legal or equitable to be levied on its property or obtained against it, or fails to observe or perform any of its obligations or duties under the Contract or any other contract between the Seller and the Buyer or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Buyer ceases to trade.
14.3
The termination of a Contract howsoever arising shall be without prejudice to the rights, powers or remedies accrued for the benefit of the Seller prior to termination and without prejudice to the generality of the foregoing the Seller’s rights contained in Condition 7 (but not the Buyer’s rights) shall continue beyond the discharge of the Buyer’s and the Seller’s primary obligations under the Contract consequent upon its termination.
15. Communication
15.1
All communications between the parties about a Contract must be in writing and delivered by hand or sent by pre-paid first class post or sent by facsimile transmission or electronic mail:
15.1.1
(in case of communications to the Seller) to its registered office or such changed address as shall be notified to the Buyer by the Seller and shall be marked for the attention of the Sales Manager; or
15.1.2
(in the case of the communications to the Buyer) to the registered office of the Buyer (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Seller by the Buyer.
15.2
Communications shall be deemed to have been received:
15.2.1
if sent by pre-paid first class post, 2 (two) days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
15.2.2
if delivered by hand, on the day of delivery; or
15.2.3
if sent by facsimile transmission or electronic mail on a working day prior to 4:00 p.m., at the time of transmission and otherwise on the next working day.
16. General
16.1
Any failure by the Seller to exercise any rights under these Conditions shall not constitute a waiver or prevent the subsequent exercise of such rights.
16.2
These Conditions, the Quotation, the Purchase Order and the written acknowledgement of the Purchase Order (including any applicable specification) contain all the terms which the parties have agreed in relation to the transactions provided for by the Contract and neither of the parties has been induced to enter into the Contract by a statement or promise which they do not contain. This shall not exclude any liability, which a party would otherwise have to the other party in respect of any statement made fraudulently by that party prior to the date of the Contract.
16.3
If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part they shall not affect the validity of the other provisions of these Conditions.
16.4
The Seller and the Buyer do not intend that any of the terms in the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person not a party to it.
16.5
The Seller may assign, license or sub-contract all or any part of its rights of obligations under a Contract without the Buyer’s consent.
16.6
Each Contract is personal to the Buyer who may not assign, license or sub-contract all or any of its rights or obligations under this Contract without the Seller’s prior written consent.
16.7
All disputes arising therefrom shall be submitted to arbitration in the Seller’s country of registration and in accordance with the Provisions of the Arbitration Act 1950 or any statutory modification or enactment thereof.
16.8
The formation, construction, performance, validity and all aspects of each Contract are governed by the Seller’s Country Law and the parties submit to the exclusive jurisdiction of the Courts in the Seller’s country of registration.
Edition 1.1
May 2004
