Terms and Conditions
General Terms and
Conditions of Sale
1. Application
of terms. The
contract (Contract) between Seller and Buyer for the sale of goods (Goods)
and/or services (Services) to be supplied by Seller shall be on these
conditions to the exclusion of all other terms and conditions (including any
terms/conditions which Buyer purports to apply under any purchase order,
confirmation of order, specification or other document). These conditions apply
to all Seller’s sales and any variation hereto shall have no effect unless
expressly agreed in writing and signed by an officer of Seller. Each order or
acceptance of a quotation for Goods or Services by Buyer shall be deemed to be
an offer by Buyer to buy Goods and/or Services subject to these conditions. Any
quotation is given on the basis that no Contract shall come into existence until
Seller despatches an acknowledgement of order to Buyer.
2. Description.
The
quantity/description of Goods/Services shall be as set out in Seller’s
acknowledgement. All samples, drawings, descriptive matter, specifications and
advertising issued by Seller in its catalogues/brochures or otherwise shall not
form part of the Contract. This is not a sale by sample.
3. Delivery:
Unless otherwise
agreed in writing by Seller, delivery of Goods shall take place at Seller’s
place of business. Services shall be provided at such venue(s) specified in
Seller’s quotation. Buyer shall take delivery of Goods within 10 days of Seller
giving it notice that Goods are ready for delivery. Any dates specified by
Seller for delivery of Goods or performance of Services are intended to be an
estimate and time for delivery shall not be made of the essence by notice. If
no dates are so specified, delivery/performance shall be within a reasonable
time. Subject to the other provisions hereof, Seller shall not be liable for
any direct, indirect or consequential loss (all three of which terms include,
without limitation, pure economic loss, loss of profits, loss of business,
depletion of goodwill and similar loss), costs, damages, charges or expenses
caused directly or indirectly by any delay in delivery of Goods or Services
(even if caused by Seller’s negligence), nor shall any delay entitle Buyer to
terminate or rescind the Contract unless such delay exceeds 180 days. If for
any reason Buyer fails to accept delivery of Goods when ready, or Seller is
unable to deliver Goods on time because Buyer has not provided appropriate
instructions, documents, licences or authorisations:
(i) Risk in Goods shall pass
to Buyer;
(ii) Goods shall be deemed to
have been delivered; and
(iii) Seller may store Goods
until delivery, whereupon Buyer shall be liable for all related costs. The
quantity of any consignment of Goods as recorded by Seller on despatch from
Seller’s place of business shall be conclusive evidence of the quantity
received by Buyer on delivery, unless Buyer can provide conclusive evidence
proving the contrary. Buyer shall provide Seller in a timely manner and at no
charge access to its facilities as required by Seller to perform Services,
informing Seller of all health/safety rules and security requirements. Buyer
also shall obtain and maintain all licenses/consents and comply with all
legislation in relation to the Services. If Seller’s performance of the
Services is prevented/delayed by any act/omission of Buyer, Buyer shall pay
Seller all costs incurred by Seller.
4. Risk/title. Goods are at the risk of Buyer from
time of delivery. Buyer’s right to possession of Goods shall terminate
immediately if:
(i) Buyer has a bankruptcy
order made against it or makes an arrangement or composition with his
creditors, or otherwise takes the benefit of any statutory provision for the
time being in force for the relief of insolvent debtors, or (being a body
corporate) convenes a meeting of creditors (whether formal or informal), or
enters into liquidation (whether voluntary or compulsory), except a solvent
voluntary liquidation for the purpose only of reconstruction or amalgamation,
or has a receiver and/or manager, administrator or administrative receiver
appointed of its undertaking or any part thereof, or documents are filed with
the court for the appointment of an administrator of Buyer or notice of
intention to appoint an administrator is given by Buyer or its directors or by
a qualifying floating charge holder (as defined in Law of the People’s Republic
of China on Enterprise Bankruptcy 2006), or a resolution is passed or a
petition presented to any court for the winding-up of Buyer or for the granting
of an administration order in respect of Buyer, or any proceedings are
commenced relating to the insolvency or possible insolvency of Buyer; or
(ii) Buyer suffers or allows
any execution, whether legal or equitable, to be levied on its property or
obtained against it, or fails to observe or perform any of its obligations
under the Contract or any other contract between Seller and Buyer, or is unable
to pay its debts within the meaning of Law of the People’s Republic of China on
Enterprise Bankruptcy 2006 or Buyer ceases to trade; or
(iii) Buyer encumbers or in
any way charges any of Goods. Seller shall be entitled to recover payment for
Goods notwithstanding that ownership of any of Goods has not passed from
Seller. While any payment for Goods remains outstanding, Seller may require
return of Goods. Where Goods are not returned in a reasonable time, Buyer
grants Seller an irrevocable license at any time to enter any premises where
Goods are or may be stored in order to inspect them, or, where Buyer’s right to
possession has terminated, to recover them, and to sever Goods where they are
attached or connected to another item without being responsible for any damage
caused. Any such return or recovery shall be without prejudice to Buyer’s
continuing obligation to purchase Goods in accordance with the Contract. Where
Seller is unable to determine whether any goods are the Goods in respect of
which Buyer’s right to possession has terminated, Buyer shall be deemed to have
sold all Goods of the kind sold by Seller to Buyer in the order in which they
were invoiced to Buyer. On termination of the Contract, howsoever caused,
Seller’s (but not Buyer’s) rights contained in this Section 4 shall remain in
effect.
5. Price.
Unless otherwise set
forth in writing by Seller, the price for Goods shall be the price set out in
Seller’s price list published on the date of delivery/deemed delivery and the
price for Services shall be on a time and materials basis calculated in
accordance with Seller’s standard daily fee rates. This price shall be
exclusive of any value-added tax (VAT) and all costs/charges in relation to
packaging, loading, unloading, carriage and insurance, all of which Buyer shall
be liable to pay. Seller reserves the right, by giving notice to Buyer at any
time prior to delivery, to increase the price of Goods/Services to reflect an
increase in cost to Seller due to any factor beyond Seller’s control (such as,
without limitation, foreign exchange fluctuation, currency regulation,
alteration of duties, significant increase in cost of labour, materials or
other costs of manufacture), change in the delivery dates, quantities or
specification of Goods which shall be requested by Buyer, or any delay caused
by the instructions of Buyer, or failure of Buyer to give Seller adequate
information/instructions.
6. Payment.
Unless otherwise set
forth in writing by Seller, payment of the price for Goods/Services shall be
due in pounds sterling per the following: 30% with order; 60% not less than 7
days prior to delivery/performance; and balance of 10% within 30 days from the
date of delivery/performance. Time for payment shall be of the essence. No
payment shall be deemed received until Seller shall have received cleared
funds. The whole purchase price (including VAT, as appropriate) shall be
payable as aforesaid, notwithstanding the fact that Services ancillary or
relating thereto remain outstanding. Notwithstanding the foregoing, all
payments shall become due immediately on termination of the Contract. Buyer
shall make all payments due in full without deduction whether by way of
set-off, counterclaim, discount, abatement or otherwise. If Buyer fails to pay
Seller any sum due, Seller shall be entitled to
(i) charge interest on such
sum from the due date for payment at a compounded monthly rate equivalent to 3%
until payment is made, whether before or after any judgment [Seller reserves
the right to claim interest];
(ii) suspend performance of
Services or provision of Goods and/or
(iii) terminate the Contract
without notice
7. Warranty.
Seller shall use
reasonable endeavours to provide the Services in accordance in all material
respects with its quotation. Seller warrants that for 12 months from the date
of delivery, the Goods shall comply with the requirements of the Contract.
Seller shall not be liable for a breach of the warranty as to Goods unless:
(i) Buyer gives written
notice of the defect to Seller, and, if the defect is as a result of damage in
transit to the carrier, within 10 days of the time when Buyer discovers or
ought to have discovered the defect; and
(ii) Seller is given a
reasonable opportunity after receiving the notice to examine such Goods and
Buyer (if asked to do so by Seller) returns such Goods to Seller’s place of
business at Buyer’s cost; and
(iii) Buyer provides Seller
with full details of the alleged defect.
Seller further shall not be
liable for a breach of the warranty if:
(i) Buyer makes any further
use of such Goods after giving such notice; or
(ii) The defect arises
because Buyer failed to follow Seller’s oral or written instructions as to the
storage, installation, commissioning, use or maintenance of Goods or (if there
are none) good trade practice; or
(iii) Buyer alters or repairs
such Goods without the written consent of Seller; or
(iv) The defect results from
fair wear and tear. If Goods/Services do not conform with the warranty, Seller
shall at its option repair or replace such Goods (or the defective part) or
re-perform the Services or refund the price of such Goods/Services at the pro
rata Contract rate provided that, if Seller so requests, Buyer shall, at
Seller’s expense, return the Goods or the part of such Goods which is defective
to Seller. In the event that no defect is found, Buyer shall reimburse Seller
for the reasonable costs incurred in investigating the alleged defect. If
Seller complies with the conditions in the 2 preceding sentences, Seller shall
have no further liability for a breach of warranty in respect of such
Goods/Services.
8. Limitation
of liability. The
following provisions set out the entire financial liability of Seller
(including any liability for acts/omissions of its employees, agents and
sub-contractors) to Buyer in respect of:
(i) Any breach of the
Contract;
(ii) Any use made or resale
by Buyer of Goods, or of any product incorporating Good;
(iii) Provision of the
Services;
(iv) Use or application of
any information contained in Seller’s documentation; and
(v) Any representation,
statement or tortious act/omission including negligence arising under or in
connection with the Contract.
All warranties, conditions
and other terms implied by statute or common law (save for the conditions
implied by Contract Law of the People’s Republic of China) are, to the fullest
extent permitted by law, excluded from the Contract. Nothing in these
conditions excludes or limits the liability of Seller:
(i) For death or personal
injury caused by Seller’s negligence; or
(ii) For any matter which it
would be illegal for Seller to exclude or attempt to exclude its liability; or
(iii) For fraud or fraudulent
misrepresentation.
Subject to the foregoing,
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
shall be limited to the Contract price; and Seller shall not be liable to 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.
9. Force
majeure. Seller
reserves the right to defer the date of delivery or to cancel the Contract or
reduce the volume of the Goods/Services ordered by Buyer (without liability to
Buyer) if it is prevented from or delayed in the carrying on of its business
due to circumstances beyond its reasonable control including, without
limitation, acts of God, expropriation, confiscation or requisitioning of
facilities or equipment, governmental actions, directives or requests, war or
national emergency, acts of terrorism, protests, riot, civil commotion, fire,
explosion, flood, inclement, adverse or extreme weather conditions, including
but not limited to storm, hurricane, tornado, or lightning, natural disasters,
epidemic, lock-outs, strikes or other labour disputes (whether or not relating
to either party’s workforce), or restraints or delays affecting carriers or
inability or delay in obtaining supplies of adequate or suitable materials,
labour, fuel, utilities, parts or machinery, failure to obtain any license,
permit or authority, import or export regulations, restrictions or embargoes.
10. Intellectual
Property. All
intellectual property rights in the products/materials developed by Seller,
independently or with Buyer, relating to the Services shall be owned by Seller.
11. General.
Each right or remedy
of Seller under the Contract is without prejudice to any other right or remedy
of Seller whether under the Contract or not. If any provision of the Contract
is found by any court, or like body to be wholly or partly illegal, invalid, void,
voidable, unenforceable or unreasonable it shall to the extent of such
illegality, invalidity, voidness, voidability, unenforceability or
unreasonableness be deemed severable and the remaining provisions of the
Contract and the remainder of such provision shall continue in full force and
effect. Failure or delay by Seller in enforcing or partially enforcing any
provision of the Contract shall not be construed as a waiver of any of its
rights thereunder. Seller may assign the Contract or any part of it, but Buyer
shall not be entitled to assign the Contract or any part of it without the
prior written consent of Seller. Any waiver by Seller of any breach of, or any
default under, any provision of Contract by Buyer shall not be deemed a waiver
of any subsequent breach or default and shall in no way affect other terms of
the Contract. The parties to the Contract do not intend that any term of the
Contract shall be enforceable by virtue of the Contracts (Rights of Third
Parties) Contract Law of the People’s Republic of China 2010 by any person that
is not a party to it. The formation, existence, construction, performance,
validity and all aspects of the Contract shall be governed by Chinese law and
the parties submit to the exclusive jurisdiction of the Chinese courts.