“Seller” means EXB (UK) Limited which authorises its operations through its Bristol office.
“Order” means any contract for the sale and purchase of goods between the seller and the buyer being any written quotation of the seller which is accepted by the buyer or any written order of the buyer which is accepted by the seller.
“Buyer”means the company, firm or person placing the order with the seller.
“Goods” mean the goods or services agreed to be supplied pursuant to the order.
2. ACCEPTANCE OF ORDER
2.1 The seller’s acceptance of the order is subject to these terms and conditions of sale which shall be incorporated into each such order and to any additional terms and conditions that may be contained in the sellers price list’s or quotations pursuant to which the order was given.
2.2 These terms and conditions of sale may only be amended or waived with the written consent of the seller.
2.3 The terms and conditions of sale referred to in clause 2.1 shall take precedence over any additional or inconsistent terms and conditions contained in the buyers order or in the buyers request for a quotation.
2.4 If the buyer’s order calls for delivery of goods covered by a pre-existing written contract between the buyers and the seller, the terms and provisions of that contract shall prevail in the case of any inconsistency between the terms of that contract and these terms and conditions buy solely to the extent necessary to avoid or remove such inconsistency.
3. PRICE AND PAYMENT
3.1 The seller reserves the right to vary by giving notice at any time before delivering to the buyer any of the prices quoted to the buyer in order to;
a) conform with the seller’s price list as at the date of despatch of the goods
b) reflect changes in product costs or related services between the date of quotation and the date of delivery: or
c) take account of (1) implementation of any requests by the buyer for changes in delivery schedules, completion dates, quantities, qualities, designs or specifications or similar requests or (11) delays caused by any instruction of the buyer or by any failure of the buyer to give adequate information or instructions.
d) delays or additional or overtime work arising from causes for which the seller is not directly responsible: or
e) fluctuations in foreign exchange rates
3.2 Unless expressly referred to, all prices are exclusive of VAT which shall be paid by the buyer. The buyer shall also be liable to pay any other taxes, duties, fees, imposts and surcharges which may be applicable to the goods (including but not limited to import and export duties)
3.3 If any sums are unpaid by the buyer after the due date then without prejudice to any other right or remedy available to the seller, the seller shall be entitled to:
a) charge the buyer interest (both before and after judgement) on the amount unpaid, at the rate of 4.00% above the Bank Of England base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest): and
b) recover all and any losses, costs, charges or expenses (including legal fees) which the seller may suffer or incur which arise, directly or indirectly, out of or are attributable to or are connected with the failure by the buyer to pay any sums due upon the due date.
3.4 For transaction concluded on C.I.F basis the insurance amount will be for 110% of the invoice value against the risks specified (generally 1CC(A) war and strikes) If additional insurance amount or coverage is required, the buyer must have the consent of the seller before shipment, and the additional premium is to be born by the buyer.
3.5 Payment by the buyer to the seller of the goods shall be in accordance with pre-arranged trading terms between the buyer and the seller
4.1 The seller reserves the right to make any change in the specification of the goods which does not materially affect the installation, performance or price thereof; any such change shall not invalidate any order placed with the seller or impose any liability on the seller.
4.2 Subject to clause 4.1, if the seller shall cease to manufacture any goods ordered by the buyer, it shall give notice of the fact in writing to the buyer (but shall not be liable for any loss or damage occasioned thereby to the buyer) whereupon the buyer will have the option, to be exercised within ten (10) days of the date of the date of such notice, either to take equivalent goods) if available from the seller) or to cancel its order without further liability upon the seller or the buyer. If the buyer has not exercised such option within such period, the order shall be deemed to be continued with the equivalent goods.
5.1 Where the delivery of goods is the responsibility of the seller, the method of carriage shall be at the discretion of seller.
5.2 The seller will make every reasonable effort promptly to deliver goods (whether by instalment or otherwise). Where the delivery is to be made by instalments, delay in delivering one instalment shall not entitle the buyer to refuse to accept the remaining instalments.
5.3 Unless the seller is notified otherwise in writing by the buyer, all goods will be delivered to the address of the buyer specified on the buyers order.
5.4 No extra charge will be made for the delivery in accordance with pre-arranged delivery times. Delivery beyond these points and for all other orders shall be at the expense and responsibility of the buyer.
5.5 While the seller will use all reasonable endeavours to avoid in any delay in delivery on the notified delivery dates, failure to deliver by the specified date will not be a sufficient cause for cancellation nor will the seller be liable for any consequential loss or damage (including any loss of revenue or increase in expenses) due to reasonable delay in the delivery of the goods.
5.6 Delivery to or collection by any carrier for carriage to the destination indicated by the buyer shall be deemed to be delivery of the goods and due performance of the seller’s obligations.
6. TITLE AND RISK
6.1 Until payment in full for all amounts due and owing from the buyer to the seller for the time being (including any interest accruing and owing to the seller) in respect of the goods has been received by the seller, the title in all and any goods (both legal and beneficial) shall remain with the seller, despite the fact that the buyer may mix or combine the goods with other goods. Until such receipt the buyer shall be and be deemed to be a bailee of the goods on behalf of the seller.
6.2 The risk in the goods shall remain with the seller until delivery of the goods to the buyer or in case of then export market, delivery in accordance with pre-arranged terms and between the buyer and seller.
7. ACCEPTANCE OF GOODS
Acceptance of goods delivered to the buyer shall be deemed to have taken place at the expiration of 3 days of the date of the delivery to the buyer.
8. QUALITY/QUALITY DISCREPENCY
In the case of quality discrepancy, the buyer may, within 7 days after the delivery of the goods or the arrival of the goods at the port of destination for export market, lodge with seller a claim quality discrepancy. In case of quantity discrepancy, the buyer may, within 7 days after the delivery of the goods or the arrival of the goods at the port destination for export market, lodge with seller a claim for such quantity discrepancy. The claim (s) should be supported by survey reports issued by a recognised public surveyor approved by the seller. The seller shall not be liable for any discrepancy of the goods shipped due to causes for which the insurance company, shipping company, other transportation organisation or post office are liable.
9.1 The goods are warranted to accord on delivery with the specification agreed in writing or, if there is no such written specification, to be free from defects in material and workmanship developing out of normal use for a period of 12 months from the delivery date.
9.2 All other warranties, representations or conditions (statutory or otherwise) as to quality, condition description or fitness for purpose are hereby expressed excluded.
10. LIMIT OF LIABILITY
10.1 Not withstanding any other terms and conditions of sale referred to in clause 2.1, the sellers total liability to the buyer under the warranty contained in clause 9 shall be to replace the goods shown to be defective or otherwise the subject of a claim, at the sellers option to reimburse the price received by the seller for the goods.
10.2 The seller shall have no liability under the warranty contained in clause 9 in respect of any defect in the goods arising from the specifications or materials supplied by the buyer, fair wear and tear wilful damage or negligence of the buyer or its employees or agents, abnormal working conditions at the buyers premises, failure to follow the sellers instructions (whether oral or in writing) misuse or alteration or repair of the goods without the sellers approval, or if the total price for the goods has not been paid.
10.3 The seller shall not be liable to the buyer for any loss, expenses or damage, of any kind (including damages for loss of profit or loss of use) and whether arising from negligence or otherwise resulting from the supply, purported supply, failure to supply or from the buyers use, possession or resale of the goods, save (in the case of a sale to a person dealing as a consumer within the meaning of the unfair contact terms act 1977) in respect of death or personal injury caused by the sellers negligence.
10.4 Any claim by the buyer under the warranty contained in clause 9 must be made in writing immediately upon discovery and, in any event, within 12 months from the delivery of the goods.
10.5 The buyer acknowledges that the price of the goods reflects the limitations contained in this clause 10.
The seller may, as its option,. Cancel or suspend any contract arising out of acceptance of an order and take over the goods and dispose of them to recover any loss, damage or harm suffered by the seller as a result of the buyer ceasing or threatening to cease to carry on business, undergoing a change in effective control without the sellers consent, defaulting in making payment to the buyer, being unable to pay its debts as and when they fall due, becomes bankrupt or makes any composition for the benefit of creditors or makes any voluntary arrangement with its creditors or becomes subject to an administrative order to goes into liquidation whether voluntary or compulsory (other than for the purpose of reconstruction or amalgamation) or an encumbrancer takes possession of or a receiver or similar official appointed over its assets. Any such cancellation or suspension shall be without compensation to the buyer but without prejudice to any right of the seller hereunder
12. FORCE MAJURE
The seller shall be excused from the performance of any of its obligations if and in so far as, and for so long as, such performance is delayed or prevented by circumstances beyond its reasonable control including but not limited to strikes, lock-outs or labour disputes of any kind (whether relating to its own employees or others), fire, flood, explosion, natural catastrophe, military operations, blockade, sabotage, revolution, not, civil commotion, war or civil war.
13. APPLICATION LAW
The construction, validity and performance of these terms and conditions shall be governed by and construed in accordance with the laws of England.