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AUGESCO
INTERNATIONAL LIMITED (“Augesco”)
STANDARD TERMS AND CONDITIONS OF SALE
BASIS OF SALE
AND APPLICATION OF THESE CONDITIONS
Any
contract (“Contract”)
between Augesco and any person, firm or company (“Buyer”)
who purchases goods (“Goods”)
from Augesco, and/or any Contract between any manufacturer or
supplier (“the
Supplier”)
for whom Augesco acts as sales agent and any Buyer who purchases
goods from the Supplier shall be in accordance with any written
quotation of either Augesco or the Supplier (either of which shall
be “the
Seller”
as appropriate) and any sample (where such sample is accepted in
writing by the Seller as the standard to which it shall supply or
manufacture) and shall be subject to these terms and conditions
(“Conditions”)
to the exclusion of all other terms and conditions (including any
terms or conditions which the Buyer purports to apply under any
purchase order, confirmation of order, specification or other
document).
No
terms or conditions endorsed on, delivered with or contained in the
Buyer's purchase order, confirmation of order, specification or
other document shall form part of the Contract simply as a result
of such document being referred to in the Contract.
The
provisions of INCOTERMS 2000 shall apply in so far as they are
incorporated into any contract between the parties but if there is
any conflict between the provisions of INCOTERMS 2000 and these
Conditions the latter shall prevail.
Each order or
acceptance of a quotation for Goods by the Buyer from the Seller
shall be deemed to be an offer by the Buyer to buy the Goods
subject to these conditions.
No
order placed by the Buyer shall be deemed to be accepted by the
Seller unless and until a written acknowledgement of order is
issued by the Seller.
Any
variation to these conditions and any representations about the
goods shall have no effect unless expressly agreed in writing and
signed by an authorized representative of the Seller.
The
Seller’s employees (other than those with written authority)
or agents are not authorised to make any representations concerning
the Goods unless confirmed by the Seller in writing. In entering
into the Contract the Buyer acknowledges that it does not rely on
any such representations which are not so confirmed. Nothing in
this condition shall exclude or limit the Seller’s liability
for fraudulent misrepresentation.
ORDERS
AND SPECIFICATIONS
The
Buyer shall ensure that the terms of its order and any applicable
specification are complete and accurate.
The
Buyer shall be responsible to the Seller for ensuring the accuracy
of the terms of any order (including any applicable specification)
submitted by the Buyer, and for giving the Seller any necessary
information relating to the Goods within sufficient time to enable
the Seller to perform the Contract in accordance with its terms
including details of the specification of the goods and any
manufacturing process to be applied to them.
The
quantity, quality and description of and any specification for the
Goods shall be those set out in the Seller's quotation unless any
variation specified in the Buyer's order is accepted in writing by
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
legal 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, where relevant,
any expenses incurred by Augesco acting in its capacity as sales
agent of the Supplier as a result of cancellation.
PRICE OF
THE GOODS AND SERVICES
The
price of the Goods shall be the Seller's quoted price. All prices
quoted are valid for 30 days only or until an order is placed by
the Buyer (if earlier), after which time prices may be altered by
the Seller without giving notice to the Buyer.
Except
as otherwise stated under the terms of any quotation and unless
otherwise agreed in writing between the Buyer and the Seller, all
prices are given by the Seller include packaging where required,
transport (to the named port of shipment if the Buyer buys FOB and
to the named port of destination if the Buyer buys CFR or CIF) and
insurance (if the Buyer buys CIF).
The
price is exclusive of any installation costs and any customs duties
and other similar tariffs and any applicable value added tax, which
the Buyer shall be additionally liable to pay.
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, alteration of
duties, significant increase in the costs of labour, materials or
other costs of manufacture), 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.
TERMS OF PAYMENT
The
time of payment of the price shall be of the essence of the
Contract. Receipts for payment will be issued only upon request.
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 contract 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); and
charge
the Buyer interest (both before and after any judgment) on the
amount unpaid, at the rate of 5 per cent per annum 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
purposes of calculating interest).
DELIVERY
Delivery
of the Goods shall be made by the Seller delivering the Goods on
board the vessel at the named port on the date or within the period
stipulated and in the manner customary at that port and the Seller
shall be under no obligation to give notice under s.32(3) Sale of
Goods Act 1979.
Any
dates quoted for delivery of the Goods are approximate only and the
Seller shall not be liable for any delay in delivery of the Goods
howsoever caused. 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 quoted delivery date upon
giving reasonable notice to the Buyer.
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 or their delivery 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 fails to give the
Seller 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 the Seller's fault) then,
without prejudice to any other right or remedy available to the
Seller, the Seller may:
store
the Goods until actual delivery and charge the Buyer for the
reasonable costs (including insurance) of storage; or
sell
the Goods at the best price readily obtainable and charge the
Buyer for any shortfall below the price under the Contract and all
reasonable storage and selling expenses.
Where
the Seller agrees to sell otherwise than at the Seller's premises,
the Seller shall be under no obligation of s.32(2) Sale of Goods
Act 1979.
PRODUCT SAFETY, REGULATORY COMPLIANCE
The
Buyer shall ascertain and comply with applicable laws relating to
the Goods and in particular those relating to health and safety.
The Buyer shall notify the Seller of such obligations in full and
pay all of the Seller's costs of complying with the same.
The
Buyer shall indemnify the Seller against any liability in relation
to any breach of the Buyer's obligations under this clause and
without restricting the general extent of this sub-clause, any
claim by any person arising from use or operation of the Goods save
to the extent that the claim arises from any defect in the Goods.
The
Buyer shall ensure that any warning notices displayed on the goods
are not removed or obscured and that safe practices in using and
disposing of the goods are adopted and complied with.
After
termination (howsoever caused) the provisions of this clause shall
continue in full effect.
RISK AND
TITLE
The
Goods are at the risk of the Buyer from the time when the goods
pass the ship's rail at the port of shipment.
Ownership
of the Goods shall pass to the Buyer when the Goods pass the ship’s
rail at the port of shipment, except that ownership shall not pass
to the Buyer until the Seller has received in full (in cash or
cleared funds) all sums due to it in respect of the Goods and all
other sums which are or which become due to the Seller from the
Buyer on any account.
Until
ownership of the Goods has passed to the Buyer, the Buyer shall
hold the Goods on a fiduciary basis as the Seller’s bailee,
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, not
destroy, deface or obscure any identifying mark or packaging on or
relating to the Goods; and maintain the Goods in satisfactory
condition and keep them insured on the Seller’s behalf for
their full price against all risks to the reasonable satisfaction
of the Seller. The Buyer may resell the Goods before ownership has
passed to it solely on the following conditions any sale shall be
effected in the ordinary course of the Buyer's business at full
market value and 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. 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. 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. Where the Seller is unable to
determine whether any Goods are the goods in respect of which the
Buyer's right to possession has terminated, 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. On
termination of the Contract, howsoever caused, the Seller’s
(but not the Buyer's) rights contained in this condition 7.3 shall
remain in effect.
EXCLUSION OF LIABILITY
The
following provisions set out the entire financial liability of the
Seller (including any liability for the acts or omissions of its
employees, agents and sub-contractors) to the Buyer in respect of
any breach of these Conditions, any use made or resale by the Buyer
of any of the Goods, or of any product incorporating any of the
Goods; and any representation, statement or tortious act or
omission including negligence arising under or in connection with
the Contract.
Save as expressly
agreed in writing by the Seller, the Seller gives no guarantee or
warranty, express or implied, upon which the Goods are sold or
licensed and all warranties, conditions and other terms implied by
statute or common law are, to the fullest extent permitted by law,
excluded from the Contract.
Nothing in these
Conditions excludes or limits the liability of the Seller for death
or personal injury caused by the Seller’s negligence or for
any matter which it would be illegal for the Seller to exclude or
attempt to exclude its liability or for fraud or fraudulent
misrepresentation.
The
Seller’s total liability in contract, tort (including
negligence or breach of statutory duty), misrepresentation,
restitution or otherwise, arising in connection with the
performance or contemplated performance of the Contract (and
whether resulting from the acts or omissions of the Seller, its
employees or agents or otherwise) shall be limited to the Contract
price; and the Seller shall not be liable to the Buyer for loss of
profit, loss of business, or depletion of goodwill in each case
whether direct, indirect or consequential, or any claims for
consequential compensation whatsoever (howsoever caused) which
arise out of or in connection with the Contract.
Where
any defect in the quality or condition of the Goods or their
failure to meet specification is notified to the Seller, the Seller
shall be entitled to replace the Goods (or the part in question)
free of charge delivered FOB only or provide the customer with a
credit note but the Seller shall have no further liability to the
Buyer.
The
Seller shall be under no liability in respect of any defect in the
Goods arising from any drawing, design or specification supplied by
the Buyer.
The
Seller shall be under no liability in respect of any defect arising
from fair wear and tear, wilful damage, negligence, abnormal
working conditions, failure to follow the Seller's instructions
(whether oral or in writing), misuse or alteration or repair of the
Goods without the Seller's approval.
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 performing, or any
failure to perform, any of its obligations in relation to the
Goods, if the delay or failure was due to any cause beyond the
Seller's reasonable control, including but not limited to 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.
For
the avoidance of doubt, Augesco is a party to the Contact only to
the extent that it may benefit from clause 2.5 and shall have no
liability to either the Seller or the Buyer under this Contract.
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IMPORT TERMS
The
Buyer is 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 and shall
obtain at its own cost such import licences and other consents in
relation to the Goods as are required from time to time and if
required by the Seller the Buyer shall make those licences and
consents available to the Seller prior to shipment of the Goods.
The
Buyer shall be responsible for arranging, 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
INTELLECTUAL
PROPERTY RIGHTS
The
Buyer acknowledges that all copyright, database rights, topography
rights, design rights, trade marks, trade names, utility models,
patents, domain names and any other intellectual property rights of
a similar nature (whether or not registered) subsisting anywhere in
the world in or associated with the Goods (“the
Intellectual Property Rights”)
are the Seller’s (or its licensor's) property and nothing in
this Contract shall be construed as conferring any licence or
granting any rights in favour of the Buyer in relation to the
Intellectual Property Rights.
Without
prejudice to the generality of clause 10.1, the Buyer shall not be
conferred with any rights in any designs or moulds produced in
accordance with the Buyer's specification.
If
the Buyer orders goods to be manufactured or requires any process
to be applied to goods by the Seller in accordance with a
specification submitted by the Buyer, the Buyer shall indemnify the
Seller against all loss, damages, costs and expenses awarded
against or incurred by the Seller in connection with or paid or
agreed to be paid by the Seller in settlement of any claim for
infringement of any patent, copyright, design, trade mark or other
industrial or intellectual property rights of any other person
which results from the Seller's use of the Buyer's specification.
The
Buyer shall not use (other than pursuant to this agreement) or seek
to register any trade mark or trade name (including any company
name) which is identical to, confusingly similar to or incorporates
any trade mark or trade name which the Seller owns or claims rights
in anywhere in the world.
If
at any time it is alleged that the Goods infringe the rights of any
third party or if, in the Seller's reasonable opinion, such an
allegation is likely to be made, the Seller may at its option and
its own cost modify or replace the Goods in order to avoid the
infringement.
The Buyer shall
promptly and fully notify the Seller of any actual, threatened or
suspected infringement of any Intellectual Property Rights of the
Seller which comes to the Buyer's notice and will assist the Seller
(at the Seller's expense) to take any such action as is necessary
in the Seller's view to defend its rights in the applicable
territory.
The
Buyer shall promptly and fully notify the Seller of any claim by
any third party that comes to the Buyer's notice that the sale or
advertisement of the Goods infringes the Intellectual Property
Right of any person and if so requested by the Seller's shall (at
the Buyer’s expense) do all such things as may be reasonably
required to assist the Seller in taking or resisting any
proceedings in relation to any such infringement or claim.
GENERAL
Any
notice required or permitted to be given by either party to the
other under these Conditions shall be in writing addressed to the
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.
The
parties irrevocably agree that this Contract shall be governed by
the laws of England and Wales and that any dispute hereunder shall
be subject to the exclusive jurisdiction of the English Courts.
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