Terms and conditions
AITCHEE ENGINEERING LIMITED GENERAL CONDITIONS OF SALE (April 2009) – DRAFT 1
i. Aitchee Engineering Limited (“the Seller”) is not bound by any order, in pursuance of a quotation or otherwise, unless or until it has accepted the same. All orders are accepted on the strict understanding that these conditions apply and save as expressly agreed by us in writing these conditions shall override any conditions imposed by the Buyer notwithstanding that the same are subsequent in time to these conditions. Subject as herein provided no amendment to or waiver of these conditions shall be effective unless it is agreed by the Seller in writing.
ii. No agent or other person is authorised to vary these conditions or to give any warranty or to make any representation or to incur any liability on the Seller’s behalf.
iii. Acceptance of any order will only be given by the Seller when the Buyer has given his formal written order and clarified all technical and commercial details and when any required deposit payment has been received by the Seller.
iv. Orders shall not be countermanded except with the written consent of the Seller and on payment of a cancellation charge in respect of the Seller’s loss.
v. Where the Seller has not acknowledged the Buyer’s order in writing, these conditions will apply to the contract providing the customer has had prior notice of them.
2. TECHNICAL INFORMATION
i. Where goods are made to a specification, instruction or design supplied by the Buyer or any third party on behalf of the Buyer then the suitability and accuracy of that specification, instruction or design will be the Buyer’s responsibility and the Buyer will indemnify the Seller against any infringement of any patent, design right, registered design, trademark, trade name, copyright or other intellectual property right and any loss, damage or expense it may incur because of any such infringement or alleged infringement in any country and the Buyer will indemnify the Seller against any loss, damage or expense in respect of any liability rising under the Buyer Protection Act 1987 by reason of the specification or design of the goods.
ii. Where the goods are to be supplied to the Buyer’s specification the Seller reserves the right to make any changes in the specification of the goods which do not materially affect the quality or performance of the goods.
3. TERMS OF PAYMENT
i. Unless otherwise expressly agreed in writing invoices are due for payment either upon collection of the goods, or for Buyers with existing credit accounts not later than 30 days from date of invoice. When deliveries are spread over a period each consignment will be invoiced as despatched and each invoice will be treated as a separate account and be payable accordingly.
ii. Failure to pay for any goods or for any delivery shall entitle the Seller to suspend further deliveries, Guarantee, and work both on the same order and on any other order from the Buyer without prejudice to any other right the Seller may have. The Seller also reserves the right to charge interest on overdue accounts at the rate of 2% per month above base rate. The Seller reserves the right where genuine doubts arise as to the Buyer’s ability to pay or in the case of failure to pay for any goods or any delivery or instalment as aforesaid to suspend delivery of any order or any part or instalment without liability until payment or satisfactory security for payment has been provided.
iii. The Buyer is not entitled to withhold any due payment on any grounds of any equity set off or counterclaim.
i. Quotations submitted by the Seller will be held firm for a period of 30 days, unless otherwise stated.
ii. 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, increase in the costs of 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 or complete information or instructions.
iii. There shall be added to the price for the goods any value added tax and any other tax or duty relating to the manufacture, transportation, export, import, sale or delivery of the goods (whether initially charged on or payable by the Seller or the Buyer). All goods are sold “Ex Works” unless otherwise stated. If the Seller arranges or undertakes the carriage, freight, insurance and any transport costs such costs including administration costs shall be for the Buyer’s account and shall not affect the provisions of the contract as to the passing of risk
iv. The Seller reserves the right to amend prices if a suspension or alteration to the date, method or other particulars of delivery should be due to the Buyer’s instructions or lack of them. v. Payment of money by the Buyer for the goods must totally fulfil the value of the Seller’s invoice in the currency stated therein inclusive of any bank or other charges.
5. DELIVERY AND CARRIAGE
i. Goods will be forwarded by such methods of transport as the Seller shall deem fit and the risk of loss or damage to the goods shall pass to the Buyer at the time the goods are consigned to the carrier. In effecting the contract of carriage the Seller shall be deemed to be acting as agent for the Buyer and in the event of loss or damage to the goods in transit the Seller shall take reasonable steps to pursue a claim for such loss or damage against the carrier on the Buyer’s behalf provided that notification of the loss or damage shall have reached the Seller within three days of the damage or loss arising and the goods have been signed for “not examined”. The Seller’s liability in respect of any such loss or damage if admitted shall in any event be restricted to the value of the goods lost or damaged.
ii. Should the Buyer refuse to accept goods manufactured in accordance with the contract, or be unable to take delivery when the goods are ready to be delivered the Seller reserves the right to invoice same for payment as if his part of the contract had been fulfilled in every way. The Seller shall be entitled to place the goods in storage (either at the Seller’s premises or at a third party’s warehouse) store them and later remove them from storage at the risk and expense (including a charge at a commercial rate) for storage at the Seller’s premises.
iii. The delivery or performance dates specified in the contract are approximate only and, unless otherwise expressly stated, time is not of the essence for delivery. The Seller will not be liable in any circumstances for the consequences of any delay in delivery or failure to deliver if the duration of the delay is not substantial or if the delay or failure is due to any cause whatever beyond the Seller’s control or of an unexpected or exceptional nature.
iv. No delay shall entitle the Buyer to reject any delivery or any further instalment or part of the order or any other order from the Buyer or to repudiate the contract or the order.
v. The Seller cannot undertake to meet any schedule of the Buyer’s requirements supplied after the date of the contract and will have no liability whatever for delay in meeting or failure to meet all or any of such requirements (howsoever such failure or delay may arise).
vi. The Seller will not be bound by any penalty for late delivery which the Buyer may seek to impose.
6. TITLE TO GOODS
i. Ownership of the goods will not pass to the Buyer until payment for the goods has been received by the Seller in full. Nevertheless all risk in the goods shall pass to the Buyer when the goods are despatched from the Seller’s premises. Until the time of actual payment to the Seller of the total amounts owing in respect of goods the Buyer shall keep the goods on behalf of the Seller and shall store the goods in such a way that they are separately identifiable; nevertheless prior to the time of actual payment of the goods the Buyer is entitled to use the goods in the normal course of its business or to sell the goods to third parties in the normal course of its business on behalf of and for the account of the Seller (but so that the Buyer shall not be deemed as against any such third party to be the agent of the Seller) on the condition that the goods or any articles manufactured from or incorporating the goods are and remain the property of the Seller until payment has been received by the Seller as aforesaid and any amounts received from third parties for the goods or any articles manufactured from or incorporating the goods are held by the Buyer for the account of the Seller as trustee for the Seller pending payment in full to the Seller and the Buyer hereby assigns to the Seller all rights and claims that the Buyer has against any such third party.
7. DEFECTIVE GOODS — LIMITATIONS OF LIABILITY
i. The Buyer will carefully examine the goods on receipt and notify the Seller and the carrier immediately of any damage, loss or shortage. Within three days of receipt (or in the case of total loss) or of receipt of the invoice or other notification of dispatch the Buyer will give the Seller written confirmation of the damage, loss or shortage. Within fourteen days of request the Buyer will provide authority for the Seller’s servants or agents to inspect any damaged goods. The Seller’s liability, if any, will be limited to replacing or (at its option) repairing such goods provided further that if any defective part is not of the Seller’s manufacture the Buyer shall be entitled only to such guarantee as may have been given to the Seller by the manufacturer thereof and the Seller undertakes to pass the claim to such manufacturer. The Buyer will not be entitled to make any claim against the Seller for consequential loss arising out of such damage, loss or shortage.
ii. Save as otherwise provided in these conditions the Seller’s liability in respect of any defect in or failure of goods supplied is limited to replacing or (at its option) repairing or paying for the repair or replacement of goods which are found to be defective by reason of faulty, workmanship, parts or materials provided the Buyer informs the Seller of the defect as soon as is reasonably practicable and in any event the defect is notified to the Seller within three months of the delivery of the goods and authority is provided for the Seller’s servants or agents to inspect the same.
iii. Save as provided in these conditions the Seller shall have no other or further liability in respect of any direct or consequential loss or damage sustained by the Buyer arising from or in connection with any such defect, failure or error as aforesaid.
iv. Any statements made about the Seller’s goods by the Seller or its servants or agents whether orally or in writing are intended for guidance only and the Buyer should not place any reliance thereon without specific enquiry and without ensuring that any matter of concern to him is specifically mentioned in the contract.
v. The Seller may refuse to repair or replace defective parts as long as the Buyer has not performed his obligations including payment by the due date of the total price for the Goods.
vi. The Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design, materials or components or specification supplied by the Buyer viii. 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 prior approval in writing.
8. MACHINING, PROCESSING OR EMBODIMENT OF BUYER SUPPLIED MATERIAL
i. Materials or goods supplied by the Buyer to the Seller for whatever purpose shall be delivered to and collected from the Buyer’s premises free of all charges and expenses to the Seller. The Seller’s prices for machining, embodiment or processing do not include either packing, handling charges or the cost thereof. The Buyer also agrees to pay the full cost of packing or packing cases.
ii. All metal removed during the course of such operations becomes the Seller’s property and is allowed for in the price quoted.
iii. Should any material or goods sent for machinery processing or embodiment be spoiled or damaged or should the work carried out not conform to the specification requested by the Buyer, the Seller does not accept liability for the value of such material or goods or the cost of any prior operations performed thereon or for any consequential or other loss of any nature whatsoever. In such event the Seller’s sole liability shall be to re-execute, free of charge, the work which it has agreed to perform under this contract upon replacement goods or materials supplied by the Buyer at his own cost.
iv. In the event of the Buyer not being the owner of goods or materials sent for machining, processing embodiment, fitting or other purposes the Buyer warrants with the Seller to indemnify the Seller against any claim made against the Seller in respect of loss of or damage to such goods or materials made by the owner thereof or any other party.
v. The Seller will not be held responsible for any damage or loss incurred to the Buyer’s property whilst being stored or processed at the Sellers premises.
The contract shall be governed by English Law and the parties submit to the non-exclusive jurisdiction of the English Courts.