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Conditions of Sale
These conditions shall be incorporated in and govern every Quotation, offer,
acceptance and offer for sale of goods by ASM Ltd, (hereafter called the ‘Seller’)
and all other conditions, warranties and representations whether made orally or in
writing whether expressed or implied are herby expressly excluded.
2. The Quotation given by the Seller shall be subject to the written confirmation of
acceptance upon receipt of the purchase order and no contract shall be
concluded until such confirmation is given or the purchase order has otherwise
been accepted by the Seller.
3. There shall be no variation, amendment or alteration or waiver to or in respect of
the Quotation to these conditions or the Contract unless agreed in writing by
the Seller.
4. The Price for the goods shall be as specified or referred to in the Quotation and
unless otherwise stated, the Price shall be exclusive of Value Added Tax, of all
insurance, packing, loading, unloading and delivery costs and charges and all
customs duties, import/export charges, levies, taxes and other similar charges.
5. Notwithstanding anything contained herein to the contrary, the Price quoted or
referred to in the Quotation may be varied by the Seller after any contract has been
entered into and the Seller as a result of any increase between the date of
Quotation and Delivery where such increase is due to a change in market
conditions beyond the reasonable control of the Seller. The term ‘Market
Conditions’ shall include but not be limited to increases in the cost of, or charges
of, labour, raw or other materials, transport or handling charges, the imposition
amendment or alteration in any statute, order, regulation or bye law in respect of
any duty tax impost or as a result of the imposition or change in any requirement
for export or import licenses.
6. Payment shall be made by the Purchaser on the due date, namely the date of
delivery unless otherwise specified or agreed between the parties.
7. If the Purchaser shall fail to pay the Seller by date due for payment the Seller may
either suspend all further deliveries until payment is made in full or cancel the order
and any subsequent orders in so far as any goods remain to be
delivered thereunder.
8. The Seller further reserves the right to charge interest on any sums payable
hereunder which have not been made on the due date for payment at the rate of
4% per annum above the base rate of the Seller’s bankers for the time being
calculated on the outstanding balance from the date due for payment to the date
of receipt by the Seller of all outstanding sums.
9. All delivery and other dates and periods quoted by or on behalf of the Seller are
reasonable estimates only; accordingly, the Seller shall not be liable for any loss or
damage (including any consequential or indirect loss or damage) resulting from or
caused by any such delay. Any such delivery period or date quoted shall begin on
the date of the Seller's acceptance of the Purchaser’s order.
10. Unless the Purchaser shall serve a notice of rejection on the seller within 7 days of
the date of delivery of the Goods or the date due for collection then the Purchaser
shall be deemed to have accepted the Goods. Upon receipt of a notice of rejection
the Seller shall have the right to inspect the Goods at the Purchaser’s premises (if
applicable) or at its discretion it may request the Purchaser to return the faulty
Goods to the Seller's premises at the Purchaser’s cost and expense. If the Seller
finds the Goods to be faulty then it shall have the right either to repair or replace
such Goods or to refund their purchase price to the Purchaser together in each
case with all reasonable freight and insurance costs incurred by the Purchaser in
returning the Goods to the Seller.
11. Until payment has been made in full to the Seller for the Goods they shall remain
the absolute property of the Seller but the risk shall pass to the Purchaser
on delivery.
12. The Purchaser holds the goods as bailee on behalf of the Seller until such time as
payment has been made but shall be at liberty to transfer the ownership of the
Goods in the normal course of his trading providing that the proceeds of sales
thereof shall be held strictly for the account of the seller in a separate appropriately
designated bank account for the charge of all monies owing by the Purchaser to
the Seller.
13. The Seller shall under those circumstances be liable to the Purchaser for any loss
or damage arising from any cause whatsoever whilst the Goods are in transit
which shall be for the sole account of the Purchaser.
14. The Seller may at its option either repair or replace free of charge any part of the
Goods lost or damaged whilst in transit provided that the Seller and the Carrier of
the Goods are given written notice of any such loss or damage within the time
specified by the Carrier’s conditions of carriage. Alternatively where the delivery is
undertaken by the Seller’s own transport the Seller shall be given written notice
within 3 days of the arrival of the Goods or in the case of non-delivery within 7
days of despatch and provided that in any such case the Seller shall have no
further liability to the Purchaser in respect of any loss or damaged Goods, the
liability of the Seller shall be limited to those sums that recoverable from the
Shipper’s carriers and their insurers.
15. If by reasons of instructions or lack of instructions from the Purchaser, the
despatch of Goods in accordance with the Purchase Order is delayed for 14 days
or more after the vendor has given notice in writing to the Purchasers that the said
Goods are ready for despatch, the said Goods shall be deemed to have been
delivered in accordance with the contract and thereafter the Goods shall be
deemed to be at the risk of the Purchaser. The Seller shall use the best
endeavours to store the Goods whilst in their storage and the Purchaser shall pay
to the Vendor a reasonable sum for the cost of restoring the Goods and if
instructed by the Purchase for the cost of insuring the said Goods.
16. The Seller shall only be liable for injury caused to an individual as a result of
negligence on the part of the Seller or its employees (being negligence as defined
in section 1 of the Unfair Contract Terms Act 1977). The Seller shall also be liable
for any physical damage to property caused by its negligence provided always in
any one case the maximum liability of the Seller shall not exceed the contract price
for the goods in question.
17. Notwithstanding anything contained herein to the contrary the Seller shall not be
liable whether in contract, tort or otherwise and whether to the Purchaser or to any
third party for or in respect of any indirect or consequently loss or damage of any
kind whatsoever (including but not limited to any loss of business or profit) and all
or any terms, conditions, warranties of representations whether expressed or
implied by statute, common law or otherwise are herby expressly excluded (except
as otherwise expressly provided in these conditions) and provided that nothing in
these conditions shall be deemed to exclude the provision of Section 12 of the Sale of Goods Act 1979 and where the Purchaser deals as a customer to exclude
the provisions of Section 13 or 14 of the Sale of Goods Act 1979.
18. The Seller shall not be liable to the Purchaser under these conditions or otherwise
to the extent that the fulfilment of his obligations hereunder has been prevented,
hindered, delayed or otherwise prejudiced by an act, event or occurrence or
circumstance of force majeure as hereinafter defined. For the purpose of this
condition force majeure shall mean any act, event, occurrence or circumstance
beyond the reasonable control of the Seller and shall include (without restricting the
generality of the foregoing) war (whether declared or not) rebellion, riot insurrection,
national or international emergency, civil commotions, fire, flooding, explosion,
breakdown of machinery or equipment, labour disturbances, strikes, lock-outs, or
other labour disputes, mobilisation or extended military activities, seizure,
requisitions, restrictions in foreign exchange, restrictions or shortages of fuel,
power, equipment, materials, supplies or labour destruction or loss or damage due
to natural causes of any kind whatsoever. The Seller shall be entitled upon any
such act, event, occurrence of circumstance to rescind the Contract and all its
obligations towards the Purchaser thereunder and the Purchaser shall not be
entitled to receive any compensation payment or damages as a result thereof.
19. Upon the occurrence of any of the following the Seller may without notice suspend
or determine the contract or unfulfilled part thereof and stop any of the goods in
transit and recover any of the goods from the Purchaser’s premises or elsewhere.
The exercise of such right shall be without prejudice to all or any other rights,
claims and remedies to which the Seller may be lawfully entitled:
(a) if the Purchaser shall make default or commit a breach of contract or of any other
of its obligations to the Seller;
(b) if any distress or execution shall be levied upon the Purchaser’s property or assets;
(c) if the Purchaser shall make or offer to make any arrangement or composition with
its creditors;
(d) if the Purchaser shall commit an act of bankruptcy or if any petition or receiving
order in bankruptcy shall be presented or made against him or her;
(e) if the Purchaser being a company any resolution or petition to wind up the
Purchaser's business (other than for the purpose of amalgamation or
reconstruction) shall be passed or presented or if a receiver of the undertaking
property or asserts or any part thereof of the Purchaser shall be appointed.
20. The Seller shall have a general lien over any goods of the Purchaser in its
possession for any sums due from the Purchaser to the Seller whether under the
Contract or any other contract between the Purchaser and the Seller. If any lien is
not satisfied within 14 days of such sums becoming due, the Seller may in its
absolute discretion sell the Goods as agent for the Purchaser and apply the
proceeds of sales towards the payment of the sums due and the expenses of the
sale and the Seller shall be discharged from all liability whatsoever in respect of
Goods upon accounting to the Purchaser for the balance (if any) remaining.
21. The validity, construction and performance of the Contract and these conditions
shall be governed by the Laws of England (and subject to the jurisdiction of the
English Courts).
E&OE
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