ANDERS+KERN U.K. LIMITED CONDITIONS OF SALE
- General
- Quotations & Acceptance of Orders
- Descriptions, Drawings, Specifications etc.
- Price
- Payment
- Delivery
- Examination and Claims
- Warranty
- Property and Risk
- Termination, Cancellation & Suspension
- Industrial Property
- Trade Marks
- Samples and Descriptions
- Tolerances
- Waiver
- Non-assignment
- Survival of Provisions
- Proper Law
- Notices
- Headings
1. General
These Conditions of Sale shall form part of every contract between Anders+Kern U.K. Limited ["the Seller"] and the Buyer for the sale and purchase of goods supplied by the Seller ["the Goods"]. The acceptance of a quotation by the Seller or the placing of an order by the Buyer for the sale and purchase of the Goods shall include acceptance by the Buyer of these Conditions which supersede all previous negotiations and representations. No terms or conditions imposed by the Buyer and no addition to or variation of these conditions shall have effect save to the extent that they are expressly agreed to in writing and signed by a duly authorised representative of the Seller.
2. Quotations & Acceptance of Orders
[a] Quotations shall remain valid for a period of 30 days from the date of quotation inclusive, subject to paragraph [b] below.
[b] No contract shall arise between the Seller and the Buyer unless and until a firm order by the Buyer has been accepted in writing by the Seller.
[c] No addition to an order may be made by the Buyer after acceptance by the Seller of the order to which the addition relates. Any purported addition shall be treated as a separate order at the time it is made and priced accordingly.
3. Descriptions, Drawings, Specifications etc.
All descriptions, drawings, sketches, photographs, illustrations, diagrams, specifications, representations and other particulars relating to the Goods and whether furnished by the Seller to the Buyer in catalogues, press releases or elsewhere [whether verbally or in writing] are given for information purposes only and are not binding on the Seller unless specifically confirmed in writing and signed by a duly authorised representative of the Seller when acknowledging the order to which they purport to apply as being applicable to the Goods supplied under that order.
4. Price
[a] The price of the Goods shall be in accordance with the Seller's current list price for such goods ruling at the date of delivery or in accordance with the quotation if a firm order is received within the quotation period referred to in paragraph 2[a] above. The price stated in the current list price shall be subject to variations at the sole discretion of the Seller at any time before the delivery of the Goods if there is any increase in the cost to the Seller or importation, manufacture, processing, packaging or transportation of the Goods or any part thereof or if the Seller would otherwise suffer loss as a result of currency fluctuation.
[b] The Buyer shall in addition to the price of the Goods pay
[i] the amount of Value Added Tax payable in respect of the Goods and any additional costs charged under this sub-paragraph; and
[ii] all other duties, charges and taxes [if any] on the Goods.
5. Payment
[a] Liability for the payment for Goods supplied shall arise on delivery of the Goods in accordance with paragraph 6 below and payment shall be due strictly at end of the month following invoice date, or as specified by the Seller on the quotation. All payments shall be made to the Seller at its address at Norderstedt House, James Carter Road, Mildenhall, Suffolk, IP28 7RQ. The seller will be entitled to sue for the price of the Goods and all additional charges due under the contract whether or not property in the Goods shall have passed to the Buyer in accordance with paragraph 10 below
[b] Sums unpaid after the due date shall bear interest until the day of payment is received at the rate of 15% or 8% per annum over the base lending rate from time to time of Barclays Bank plc whichever shall be the greater, such interest to run from day to day and to accrue after as well as before any judgement.
[c] Without prejudice to any other rights or remedies of the Seller, any default by the Buyer in making payment of the full amount becoming payable on the due day shall entitle the Seller to suspend deliveries under this or any other contract so long as the default continues and to treat this contract as repudiated by the Buyer and determined if the Buyer shall not within fourteen days of receiving written notice from the Seller have paid all sums due to the Seller under this contract.
[d] No payments may be withheld by the Buyer for any reason nor may any counterclaim of the Buyer be set off against any payment due under the contract without the written consent of the Seller.
6. Delivery
[a] Delivery shall take place when the Goods are delivered to the Buyer's agreed premises. If the Buyer collects or arranges collection of the Goods from the Seller's premises, delivery shall instead take place when the Goods are loaded on to the collection vehicle provided by the Buyer or its agent.
[b] Any delivery dates requested by the Buyer or estimated by the Seller are approximate only and time of delivery shall not be of the essence. The Seller will use its reasonable commercial endeavours to deliver in accordance with the delivery schedule but shall not be liable for any delay in delivery or non-delivery.
[c] On notification by the Seller that the Goods are ready for despatch, the Buyer shall accept immediate delivery or in the case of delivery at the Seller's premises shall arrange for collection of the Goods, failing which the Seller:-
[i] may either effect delivery by whatever means it thinks most appropriate or arrange storage at the Buyer's risk and expense pending delivery; and
[ii] may at any time re-sell or otherwise dispose of the Goods or part of them without prejudice to any other rights the Seller may have against the Buyer for breach of contract or otherwise.
[d] The Seller shall be entitled to increase the price payable for the Goods to recover any additional costs arising from any variation or delay in delivery occasioned by the Buyer's instructions. The provisions of paragraphs 5 above relating to payment shall apply to such additional costs.
[e] The Seller shall be entitled to deliver the Goods by instalments and in such case each instalment shall constitute a separate contract any failure or defect in delivery of any one or more instalment shall not entitle the Buyer to repudiate the contract as a whole nor to cancel any subsequent instalment.
[f] The Buyer shall not be entitled to reject the Goods or part by reason only of short delivery.
[g] Where the Buyer collects or arranges collection of the Goods from the Seller's premises, entry of any vehicle of the Buyer or its agent on to the Seller's premises shall be at the sole risk of the Buyer or its agent save to the extent that any claim arises from the Seller's negligence resulting in personal injury or death.
7. Examination and Claims
[a] The Buyer shall upon delivery examine the Goods and shall promptly [but in any event within 3 days following delivery] notify the Seller, and the carrier where relevant, of any apparent damage, defect or shortage.
[b] The Buyer shall notify the Seller if the Goods are not delivered within 24 hours of the estimated time of delivery as notified to the Buyer by the Seller.
[c] Claims in respect of damage, defects or shortage not apparent or examination under [a] above must be made by the Buyer to the Seller within 14 days of the date of delivery and in the case of defects discovered in the warranty period referred to in paragraph 8 below within 14 days of any such defect becoming apparent.
8. Warranty
[a] All conditions and warranties whether express or implied by statute, common law, trade usage of otherwise shall be construed subject to these Conditions and insofar as they are inconsistent with these Conditions shall be excluded.
[b] The Seller warrants only that the Goods shall be reasonably free from defects in materials or workmanship for a period of one year from the date of invoice to the Buyer ["the warranty period"] PROVIDED that this warranty shall not apply to the extent that:-
[i] damage is caused by accident or normal wear and tear or by any act, default or misuse of the Goods by the Buyer or any third party or by failure to follow any instructions supplied with the Goods;
[ii] the Goods have been used in conjunction with equipment or materials the specification of which has not been approved in writing by the Seller;
[iii] the Goods have been altered, modified or repaired other than at the Seller's premises or by a third party not expressly nominated or approved in writing by the Seller;
[iv] the items comprising the Goods have not been completely manufactured or supplied by the Seller; in respect of the part not so manufactured or supplied by the Seller shall so far as it is able extend to the Buyer the benefit of any rights the Seller may have against the manufacturer or supplier of such goods; and subject to such proviso the Seller shall at its own option repair or replace any of the Goods found within the warranty period to be defective in materials or workmanship provided the Buyer has complied with paragraph 7 above.
[c] Save for liability for death or personal injury arising from the Seller's negligence [which if proved is not excluded] the Seller's obligation in paragraph [b] above to repair or replace shall constitute the full extent of the Seller's liability in respect of any loss or damage sustained by the Buyer whether caused by [i] breach of the contract; or [ii] misrepresentation; or [iii] negligence of the Seller, its employees or agents or arising from any other cause whatsoever, and the Seller shall not be liable for any consequential, economic, or other direct or indirect loss suffered by the Buyer arising there from even if brought to the Seller's attention.
9. Property and Risk
[a] Risk in the Goods shall pass to the Buyer on delivery of the Goods outside the United Kingdom, delivery shall be on the terms of INCOTERMS 1980 FOB as amended from time to time.
[b] The Goods shall remain the property of the Seller until such time as payment in full have been received by the Seller for the Goods together with any interest payable under paragraph 5 [b] above and any other sum payable in respect of the Goods under contract. The buyer acknowledges that until such time, it is in possession of the Goods solely as bailee for the Seller and that the Goods are at its risk. For the purpose or recovery of the Goods, the Seller may enter upon any premises where they are situated or are reasonably thought to be situated and may repossess the same.
10. Termination, Cancellation & Suspension
[a] If the Buyer shall not comply with any of its obligations to the Seller under this or any other contract or upon the occurrence of any of the events referred to in paragraph 10 [e] above the Seller shall have the right forthwith to terminate this any other contract with the Buyer or to suspend performance of the contract or any part thereof but without affecting any other claim, right or remedy of the Seller against the Buyer.
[b] If the Buyer shall purport to cancel or suspend the whole or any part of any contract with the Seller the Seller may by notice in writing to the Buyer elect to treat the contract as repudiated and on receipt of such notice the Buyer shall be liable to pay the Seller by way of liquidated damages a sum equal to all expenses incurred by the Seller in connection with the contract including an appropriate amount in respect of administrative overheads, costs and loss of profit. The Seller's estimate of the expenses incurred shall be final and binding on the parties.
[c] If for any cause whatsoever beyond its control the Seller is unable to make any delivery on the applicable delivery date or perform any of its other obligations under the contract the seller may by notice in writing to the Buyer terminate the contract or suspend performance of the contract in respect of any one or more deliveries without liability for any loss or damage thereby incurred by the Buyer.
[d] If for any cause whatsoever beyond its control the Seller's normal production of goods required for the performance of the contract with the Buyer and other comparable contracts is reduced, the Seller may proportionally reduce the quantities to be supplied to the Buyer without incurring liability for any loss or damage thereby incurred by the Buyer.
11. Industrial Property
[a] The Seller has no actual knowledge of any infringement of patent or any other industrial property right likely to result from the sale or use of the Goods, but the Seller shall bear no liability for the infringement of any patent or any other industrial property right caused by the use of the Goods in combination with other articles or materials or in any process not supplied by the Seller.
[b] The Buyer shall notify the Seller forthwith of any claim made or action brought against the Buyer for infringement of patent or any other industrial property right by the Seller and Seller shall be at liberty with the assistance of the Buyer [but at the Seller's expense] to conduct all negotiations for the settlement of any litigation which may arise there from.
12. Trade Marks
[a] The Buyer shall ensure that any trade marks of the Seller or other words or marks affixed to or used in relation to the Goods are not obliterated, obscured or omitted without the Seller's prior written consent.
[b] The Buyer shall not add, affix or use any additional words or marks to or in relation to the Goods without the Seller's prior written consent.
[c] The Buyer shall not process or alter the Goods without the Seller's prior written consent with regard to the continued use on or in relation to the Goods of any trade marks of the Seller or any other words or marks affixed to or used in relation to the Goods.
13. Samples and Descriptions
[a] The provision by the Seller of samples for analysis by the Buyer or the inspection of samples by the Buyer shall not render any sale a sale by sample.
[b] No guarantee or warranty is given that supplies will correspond exactly to the description or sample and the use of any description or sample shall not constitute the contract a sale by description or sample or a sale by sample and description.
14. Tolerances
The Seller shall be entitled to claim reasonable tolerances in respect of the Goods and reserves the right to make adaptations to the products supplied by it due to technical developments, the Seller gives no condition or warranty that the Goods are fit for any particular purpose for which the Buyer may require the same and the Buyer shall satisfy itself prior to ordering the Goods that the Goods are fit and suitable for the purpose or purposes for which the Buyer requires them.
15. Waiver
No waiver by the Seller or any breach of obligation of the Buyer pursuant to his contract shall constitute a waiver of any other prior or subsequent breach or obligation.
16. Non-assignment
The Buyer shall not be entitled to assign or sub-let the benefit or burden of this contract or any part to any other party without the prior written consent of the Seller.
17. Survival of Provisions
The expiration or determination of this contact, howsoever arising, shall be without prejudice to any provisions of the contract [including these conditions] which are to have effect after the date of expiration or determination.
18. Proper Law
This contract shall be subject to English Law. The Buyer hereby submits to the non-exclusive jurisdiction of the English Courts for the determination of any question or dispute arising under this contract.
19. Notices
All notices required to be given by the Buyer to the Seller in respect of this contract shall not be effective unless in writing and sent to the Seller at its address as set out in paragraph 5 [a] or at such other address as the Seller may have previously notified the Buyer in writing as its address for service.
20. Headings
The headings to these conditions are for convenience of reference only and shall have no effect on the construction of the Conditions