|
TERMS AND CONDITIONS OF SALE:
1 Interpretation and Headings
1.1 In these Conditions:
1.1.1 "Buyer Material" means any goods, materials or
supplies to be provided by, or on behalf of, the Buyer to Profins
for the purposes either of being used in the creation of the Goods
or for the Services to be applied to them, such Buyer Material
(if any) being identified in a Quotation or the Order;
1.1.2 "Confidential Information" means all data and/or
information concerning the business or affairs of Profins, its
trade secrets, proprietary information and know-how (in whatever
form) which Profins discloses to the Buyer;
1.1.3 "Contract" means the contract for the sale and
purchase of the Goods and the supply and acquisition of the Services;
1.1.4 "Delivery Address" means the address stated on
the Order or Quotation;
1.1.5 "Delivery Date" means the date stated on the Order
or Quotation;
1.1.6 "Goods" means the goods (including any instalment
of the goods or any parts of them) which Profins is to supply
in accordance with these Conditions;
1.1.7 "Incoterms" means the international rules for
the interpretation of trade terms of the International Chamber
of Commerce (2000 edition);
1.1.8 "Order" means the Buyer’s purchase order;
1.1.9 "Order Acceptance" means a Written acceptance
by Profins of (i) an Order or (ii) the Buyer's acceptance of a
Quotation;
1.1.10 "Price" means the aggregate price of the Goods
and/or the charge for the Services in terms of the Contract and,
where the context permits, the price for any instalment of the
Goods or the Services;
1.1.11 "Quotation" means Profin’s quotation for
the Goods and Services. Where there is any inconsistency between
the Quotation and the Order, the terms of the Quotation will prevail
unless the terms of the Order have been accepted in Writing by
Profins;
1.1.12 "Services" means the services (if any) described
in the Quotation or Order;
1.1.13 "Specification" includes any plans, drawings,
data or other information relating to the Goods or Services which
the Contract requires the Goods or Services to conform to;
1.1.14 "Warranties" means the warranties contained in
Clause 10;
1.1.15 "Writing" and any similar expression, includes
facsimile transmission and comparable means of communication but
not electronic mail.
1.2 In these Conditions the singular includes the plural and vice
versa and a reference to one gender includes all others. Unless
the context otherwise requires, any term or expression which is
defined in or given a particular meaning by the provisions of
Incoterms shall have the same meaning in these Conditions, but
if there is any conflict between the provisions of Incoterms and
these Conditions, the latter shall prevail.
2 Basis of Sale
2.1 Profins shall sell and the Buyer shall purchase the Goods
in accordance with the terms of the Contract which will be concluded
by the issue of an Order Acceptance by Profins to the Buyer following
either the issue by Profins of a Written Quotation which is accepted
by the Buyer or the receipt by Profins of an Order in Writing
from the Buyer. For the avoidance of doubt, these Conditions shall
apply to the Contract to the exclusion of any other terms referred
to by the Buyer in their Order or in any correspondence or in
any acceptance or purported acceptance of the Quotation. Any variation
of the Contract must be agreed in Writing between Profins and
the Buyer and performance of the Contract by Profins will not
constitute acceptance of any variation of these Conditions.
2.2 Profins’ employees or agents are not authorised to make
any representations concerning the Goods unless confirmed by Profins
in Writing. In entering into the Contract the Buyer acknowledges
that it does not rely on any such representations which are not
so confirmed. Any advice or recommendation given by Profins or
its employees or agents to the Buyer or its employees or agents
as to the storage, application or use of the Goods which is not
confirmed in Writing by Profins is followed or acted upon entirely
at the Buyer’s own risk.
2.3 Any typographical, clerical or other error or omission in
any sales literature, Quotation, price list, Order Acceptance,
invoice or other document or information issued by Profins shall
be subject to correction without any liability on the part of
Profins.
3 Orders
3.1 No Order submitted by the Buyer shall be deemed to be accepted
by Profins unless and until Profins has issued an Order Acceptance.
The Buyer shall be responsible to Profins for ensuring the accuracy
and adequacy of the terms of any Order or Quotation (including
any applicable Specification), and for giving Profins any information
relating to the Goods and Services reasonably required by Profins
within a sufficient time to enable Profins to perform the Contract
in accordance with its terms.
3.2 Once an Order Acceptance has been issued by Profins, no Order
which has been accepted by Profins or Quotation which has been
accepted by the Buyer, may be cancelled by the Buyer except with
the agreement in Writing of Profins and the Buyer shall indemnify
Profins in full against all loss (including loss of profit), costs
(including the cost of all labour and materials used), damages,
charges and expenses incurred by Profins as a result of cancellation.
4 Specification and Buyer Material
4.1 The quantity, quality and description of the Goods and any
Specification for them shall be as set out in Profins’ Quotation
(if accepted by the Buyer) or the Buyer’s Order (if accepted
in Writing by Profins). Profins reserves the right to make any
changes in the Specification which are required to conform with
any applicable statutory or E.U. requirements or, where the Goods
are to be supplied other than to the Buyer's Specification, which
do not materially affect their quality or performance.4.2 Where
the Contract provides that the Buyer will provide Buyer Material,
the following provisions will apply:
4.2.1 the Buyer will provide the Buyer Material to Profins on
the date(s) and in the quantity and manner required by the Contract
or, in the absence of such requirements, on the date(s) and in
the quantity and manner notified to the Buyer by Profins. The
Buyer warrants to Profins that any Buyer Material provided to
Profins will be the property of the Buyer and shall not be the
subject of any third party rights or encumbrances;
4.2.2 the Buyer will ensure that the Buyer Material conforms to
any requirements as to quality which are required by the Contract
or notified to the Buyer by Profins in Writing;
4.2.3 Profins shall be entitled to a lien over the Buyer Material
and to retain the same pending payment of any sum or sums due
to it by the Buyer from time to time, whether under the Contract
or otherwise; and
4.2.4 where any of the Buyer Material is combined with, incorporated
in or fitted to, any goods belonging to Profins for the purposes
of supplying the Goods, the property in such Buyer Material will
vest in Profins when they are combined, incorporated or fitted,
pending transfer of property in the Goods in terms of Clause 9.1.
5 Price of Goods
5.1 The Price shall be as stated in Profins’ Quotation or
in the Order Acceptance (as applicable). Where a Quotation has
been issued by Profins, unless the Quotation states otherwise,
the Price quoted is valid for 30 days only and is given subject
to available materials and capacity.
5.2 The Price, unless otherwise so stated, shall be: inclusive
of all charges for packaging, transport, shipping, carriage, insurance
and delivery of Goods to the Delivery Address; and exclusive of
any cost which may be charged by third party inspection authorities,
any applicable value added tax, other duties, imposts or levies
and any import duties where the Goods are supplied for export
from the United Kingdom, which the Buyer shall be additionally
liable to pay to Profins, if applicable. Where Profins agrees
to deliver the Goods otherwise than at the Delivery Address, the
Buyer shall be liable to pay Profins’ charges for packaging,
transport, shipping, carriage and insurance
5.3 Profins reserves the right, by giving notice in Writing to
the Buyer at any time before delivery, to increase the price of
the Goods to reflect any increase in the cost to Profins which
is due to any factor beyond the control of Profins, including
any foreign exchange fluctuation, currency regulation, alteration
of duties, significant increase in the costs of labour, materials,
freight, shipment or other costs of manufacture or carriage, any
change in delivery dates, quantities or Specification which are
requested by the Buyer, or any delay caused by any instructions
of the Buyer or failure of the Buyer to give Profins adequate
information or instructions. For the avoidance of doubt the cost
of warehousing, storage or any other expense reasonably incurred
by Profins as a result of any delay outside the control of Profins
will be charged to the Buyer in addition to the Price.
6 Terms of Payment
6.1 Profins may invoice the Buyer for the Price at the times agreed
in the Contract or, in the absence of such agreement, on or at
any time after delivery of the Goods, unless the Goods are to
be collected by the Buyer or the Buyer wrongfully fails to take
delivery of the Goods, in which event Profins shall be entitled
to invoice the Buyer for the Price at any time after Profins has
notified the Buyer that the Goods are ready for collection or
(as the case may be) Profins has tendered delivery of the Goods.
Where the Goods are to be delivered, or the Services are to be
performed by instalments, and the Contract specifies unit prices
for each particular instalment then Profins may invoice the Buyer
in the amount of the appropriate unit price for each instalment
on or at any time after it has been delivered or performed as
appropriate.
6.2 The Buyer shall pay the Price within 30 days of the date of
Profins’ invoice, and Profins shall be entitled to recover
the Price, notwithstanding that delivery may not have taken place
and the property in the Goods has not passed to the Buyer. The
time of payment of the Price shall be of the essence of the Contract.
In the event that the Buyer fails to pay the Price of the Goods
on their due date for payment Profins shall be entitled to charge
the Buyer interest (both before and after any judgement) on the
amount unpaid, at the rate of 3 per cent per annum above base
rate from time to time of The Royal Bank of Scotland plc, until
payment in full is made (a part of a month being treated as a
full month for the purpose of calculating interest) and to recover
any reasonable costs and expenses it may have incurred in endeavouring
to collect payment.
7 Delivery
7.1 Where the Contract provides that Profins will deliver the
Goods, they will be delivered to the Delivery Address on the Delivery
Date during the Buyer’s usual business hours or delivery
is ex works, by the Buyer collecting the Goods at Profins’
premises during Profins’ usual business hours at any time
after Profins has notified the Buyer that the Goods are ready
for collection. Unless otherwise provided in the Contract, any
Services shall be performed at such time and at such places as
may be required in order to enable the Goods to be delivered timeously
in accordance with this Clause 7.
7.2 The Delivery Date is approximate only and Profins’ shall
not be liable for any delay in delivery of the Goods howsoever
caused. Time for delivery shall not be of the essence of the Contract.
The Goods may be delivered by Profins in advance of the Delivery
Date on giving reasonable notice to the Buyer.
7.3 Delivery may be made in whole or by instalments. Where the
Goods are to be delivered in instalments, each delivery shall
constitute a separate contract and failure by Profins to deliver
any one or more of the instalments in accordance with these Conditions
shall not entitle the Buyer to repudiate the Contract with regard
to those remaining instalments.
7.4 Profins will use all reasonable efforts to ensure that the
Goods are packaged for transport to a reasonable standard required
for normal handling to the Delivery Address. The Goods should
not be returned to Profins without the prior agreement in Writing
of Profins.
7.5 If Profins fails to deliver the Goods (or any instalment)
as required by the Contract in circumstances where it is at fault,
the Buyer will give Profins a reasonable opportunity to remediate
the failure, failing which Profins’ liability shall be limited
to reimbursing to the Buyer any additional costs it incurs in
acquiring similar goods (at the best price available in the market)
to replace those not delivered. For the purposes of this provision,
additional costs are direct costs the Buyer has incurred which
it would not have had to pay had it acquired the Goods under the
Contract. If the Buyer fails to take delivery of the Goods or
fails to give Profins adequate delivery instructions at the time
stated for delivery then, without limiting any other right or
remedy available to Profins, Profins 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 (after deducting all reasonable storage
and selling expenses) account to the Buyer for the excess over
the price under the Contract or charge the Buyer for any shortfall
below the price under the Contract.
8 Export Terms and Export Restriction
8.1 Where the Goods are supplied for export from the United Kingdom,
the provisions of Clauses 8.2 to 8.5 shall (subject to any special
terms agreed in Writing between the Buyer and Profins) apply notwithstanding
any other provision of these Conditions.
8.2 The Buyer shall be 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 on them.
8.3 The Goods shall be delivered ex works and the Buyer must obtain
at its own risk and expense any export licence or other official
authorisation and carry out, where applicable, all customs formalities
necessary for the export of the Goods.
8.4 The Buyer shall be responsible for arranging for testing and
inspection of the Goods at Profins’ premises before shipment.
Profins shall have no liability for any claim in respect of any
defect in the Goods which should have been reasonably apparent
on inspection before shipment (whether such goods were/were not
inspected) and which is discovered after shipment, or in respect
of any damage during transit.
8.5 Payment of all amounts due to Profins shall be made by irrevocable
letter of credit opened by the Buyer in favour of Profins and
confirmed by a bank in England acceptable to Profins or, if Profins
has agreed in Writing on or before acceptance of the Buyer’s
order to waive this requirement, by acceptance by the Buyer and
delivery to Profins of a bill of exchange drawn on the Buyer payable
60 days after sight to the order of Profins at such branch of
a clearing bank in England as may be specified in the bill of
exchange.
8.6 The Buyer shall not offer the Goods for resale in any country
which is the subject of an applicable UK government sanction regime,
embargo or export restriction nor will the Buyer sell the Goods
to any person if the Buyer knows or has reason to believe that
that person intends to resell the Goods in any such country.
9 Risk and Property
9.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
in the case of Goods to be delivered at the Delivery Address on
the Delivery Date or, if the Buyer wrongfully fails to take delivery
of the Goods, the time when Profins has tendered delivery of the
Goods; or in the case of Goods to be delivered ex works, at the
time when Profins notifies the Buyer that the Goods are available
for collection. Notwithstanding delivery and the passing of risk
in the Goods, or any other provision of these Conditions, the
property in the Goods shall not pass to the Buyer until Profins
has received in cash or cleared funds, payment in full of the
Price and all other goods agreed to be sold by Profins to the
Buyer for which payment is then due.
9.2 Until such time as the property in the Goods passes to the
Buyer, the Buyer shall hold the Goods as Profins’ fiduciary
agent and bailee, and shall keep the Goods separate from those
of the Buyer and third parties and properly stored, protected
and insured and identified as Profins’ property, but the
Buyer may use the Goods in the ordinary course of its business.
Until such time as the property in the Goods passes to the Buyer,
Profins may at any time require the Buyer to deliver up the Goods
to Profins and, if the Buyer fails to do so forthwith, enter on
any premises of the Buyer or any third party where the Goods are
stored and repossess the Goods. In the event that the Buyer sells
or otherwise disposes of the Goods before such time as the property
in Goods passes to the Buyer, Profins shall be entitled to the
proceeds of such sale or disposal. The Buyer shall not be entitled
to pledge or in any way charge by way of security for any indebtedness
any of the Goods which remain the property of Profins, but if
the Buyer does so all moneys owing by the Buyer to Profins under
the Contract shall (without limiting any other right or remedy
of Profins) forthwith become due and payable.
10 Warranties and Liability
10.1 Subject to the following provisions Profins warrants that
the Goods will correspond with any Specification in all material
respects and will be free from defects in material and workmanship
and the Services will be provided with reasonable care and skill.
10.2 Profins shall be under no liability under the Warranties
in respect of any defect in the Goods which has arisen as a result
of
10.2.1 any requirement of the Buyer including any Specification
supplied by the Buyer, fair wear and tear, negligence, abnormal
working conditions, failure to follow Profins’ instructions
in relation to installation or use of the Goods or otherwise,
or alteration or repair of the Goods without Profins’ approval;
10.2.2 the unsuitability of, or any defects in, any Buyer Material
supplied to Profins and used in the Goods or in respect of which
Profins is to supply the Services (as the case may be);
10.2.3 the unsuitability of, defect in, or defect in the treatment
or manufacturing process for, any raw materials provided by a
third party to Profins and which is incorporated in the Goods,
but in such circumstances Profins will use its reasonable endeavours
to assign the Buyer the benefit of any warranties or rights of
recourse that Profins may have against such third party in respect
of such defects; or
10.2.4 the unsuitability of, or any defects in, any goods or materials
purchased from a third party by Profins and then supplied to the
Buyer under the Contract, provided that Profins has used reasonable
endeavours to assign to the Buyer the benefit of any warranties
or rights of recourse that Profins may have against such third
party in respect of such defects.
10.3 Profins shall have no liability under the Warranties if the
total Price has not been paid by the due date(s) for payment under
the Contract.
10.4 Subject as expressly provided in these Conditions, and except
where the Goods are sold to a person dealing as a consumer (within
the meaning of the Unfair Contract Terms Act 1977), all warranties,
conditions or other terms implied by statute or common law, whether
as to fitness for purpose, satisfactory quality or otherwise,
are excluded to the fullest extent permitted by law.
10.5 Subject to Clause 8.4, a claim by the Buyer which is based
on any defect in the quality or condition of the Goods or their
failure to correspond with any Specification shall (whether or
not delivery is refused by the Buyer) be notified to Profins within
7 days from the Delivery Date or (where the defect or failure
was not apparent on reasonable inspection) within a reasonable
time after discovery of the defect or failure. If delivery is
not refused, and the Buyer does not notify Profins accordingly,
the Buyer shall not be entitled to reject the Goods and Profins
shall have no liability for such defect or failure, and the Buyer
shall be bound to pay the Price as if the Goods had been delivered
in accordance with the Contract.
10.6 To the extent permitted by law, Profins shall not be liable
to the Buyer for any representation (unless fraudulent), under
contract (including the express provisions of the Contract), in
delict or otherwise, for loss of profit or for any indirect, special
or consequential loss or damage, costs, expenses or other claims
for compensation whatsoever which arise out of or in connection
with the supply of the Goods and the Services (including any delay
in supplying or any failure to supply the Goods and/or the Services
in accordance with the Contract or at all) or their use or resale
by the Buyer, and the entire liability of Profins under or in
connection with the Contract shall not exceed the Price.
11 Termination
11.1 Profins may at any time by notice in Writing to the Buyer,
terminate the Contract with immediate effect or suspend any further
deliveries to the Buyer in the event that:-
11.1.1 the Buyer ceases to conduct its business or Profins has
reasonable grounds for believing that the Buyer has ceased or
intends to cease to conduct its business; or
11.1.2 there is a material change in the management, ownership
or control of the Buyer’s business unless such change of
control has been previously approved in Writing by Profins; or
11.1.3 the Buyer sells or otherwise disposes of all or a substantial
part of its assets unless the sale or disposal concerned has been
approved in Writing by Profins; or
11.1.4 the Buyer fails to make any payment of the Price on the
due date. In addition, in such event, Profins may appropriate
any payment made by the Buyer to such of the Goods (or the goods
supplied under any other contract between the Buyer and Profins)
as Profins may think fit (notwithstanding any purported appropriation
by the Buyer); or
11.1.5 the Buyer materially breaches its obligations under this
Contract. Where the material breach is capable of being remedied
the Contract may only be terminated where the Buyer has failed
to remedy the breach within 7 days after being asked in Writing
to do so by Profins. Notwithstanding the above, Profins may terminate
this Contract immediately in the case of a material breach capable
of remedy where the breach is persistent. A breach of this Contract
will be persistent where the Buyer has been in material breach
of the same provision of this Contract more than once (whether
or not the previous beach was timeously remediated); or
11.1.6 the Buyer is the subject of a voluntary arrangement or
a moratorium, makes a proposal for any other composition, scheme
or arrangement with or for the benefit of its creditors, is unable
to pay its debts, is the subject of a petition for winding up,
has a receiver or administrator appointed or suffers a distress
or execution to be levied on any property used in connection with
its business or any events analogous thereto occur under the laws
of any other jurisdiction to which the Buyer is subject.
11.2 Any termination of the Contract pursuant to this Clause 11
shall be without prejudice to any other rights or remedies a party
may be entitled to hereunder or at law and shall not affect any
accrued rights or liabilities of either party.
12 Intellectual Property and Confidential Information
12.1 Except as expressly provided in the Contract, the Buyer does
not have any rights in respect of any of Profins’ intellectual
property rights or in any associated goodwill.
12.2 Where the Buyer supplies Buyer Material, or provides any
Specification, the Buyer confirms that their use by Profins for
the purposes of the Contract, will not cause Profins to infringe
any third party intellectual property rights and the Buyer undertakes
that it will indemnify Profins upon demand against all losses,
actions, claims, proceedings, judgements, damages, compensation,
obligations, injuries, expenses and costs (including the cost
of defending any legal proceedings) incurred by Profins as a result
of such infringement or alleged infringement.
12.3 Where Profins discloses to the Buyer any Confidential Information
the Buyer will ensure that such Confidential Information shall
be kept confidential and the Buyer will not use or disclose the
same other than for the purposes of the Contract without the prior
written consent of Profins. Upon demand by Profins, the Buyer
shall return to Profins or, if requested to do so by Profins,
destroy or permanently delete from any electronic media or storage,
all of the Confidential Information and any copies of it made
by the Buyer.
12.4 The provisions of this Clause 12 shall apply during the continuance
of the Contract and after its expiry or termination howsoever
arising.
13 General
13.1 If any provision of the Contract
is held by a court or other competent authority to be invalid
or unenforceable in whole or in part, the validity of the other
provisions of the Contract and the remainder of the provision
in question shall not be effected.
13.2 Any notice under these Conditions shall be in Writing.
13.3 The Contract is personal to the Buyer and the Buyer shall
not assign, transfer or sub-contract any of its rights or obligations
under it without the prior consent of Profins in Writing.
13.4 Profins 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 Profins’ obligations in
relation to the Goods, if the delay or failure was due to any
cause beyond Profins’ reasonable control including, but
without limitation, strikes, difficulty in obtaining raw materials,
labour, fuel, parts or machinery, and power failure or breakdown
of machinery.
13.5 The Contract shall be governed by the laws of England, and
the Buyer agrees to submit to the non-exclusive jurisdiction of
the English courts.
|
 |
