Magnesium Elektron Terms and Conditions of Sale
1. ACCEPTANCE OF ORDER AND EXPIRY DATE.
Orders are accepted only upon and subject to these conditions. Unless expressly accepted in writing by the Seller any attempted variation or qualification of these conditions by the Buyer shall be inapplicable. No contract shall be created by the Buyer’s acceptance of the Seller’s quotation until the Seller accepts in writing the Buyer’s order (called the Contract). If there is any conflict between the Seller’s quotation and these conditions the quotation shall prevail. Unless otherwise expressly accepted by both parties in writing the Contract constitutes the entire agreement between the parties, and there is no understanding, representation, or warranty of any kind, express or implied, not expressly set forth in the Contract.
Any date named by the Seller for delivery is an estimate only. The Buyer shall nevertheless be bound to accept delivery of the goods when available. Where drawings specifications instructions and materials are to be supplied the Buyer shall supply the same in reasonable time to enable the Seller to perform the contract.
3 PRICES AND PAYMENT.
Goods will be invoiced at the Seller’s quoted price or where no price is quoted the Seller’s list price current at the date of delivery. The Seller reserves the right to alter prices without notice to cover variations in the cost of but not limited to, raw materials, labour taxes. or for the Buyer’s change of design or for any other reason. If variation occurs in price during the currency of an order the price of the undespatched portion of the order outstanding at the date of such variation in price shall be adjusted accordingly. The price is exclusive of VAT which is payable in addition. The Buyer shall pay the price (without any deduction and any right of set off is excluded) within the time specified in the quotation or if not specified within 30 days of the date of the Seller’s invoice. Time of payment shall be of the essence. At the option of the Seller, interest can be charged in accordance with the Late Payment of Commercial Debt (Interest) Act 1988 on any overdue accounts.
Place of delivery and responsibility for carriage shall be as specified in the Seller’s quotation, but if not specified shall be FCA.
The specification for the goods at delivery shall be the specification as set out in the Seller’s quotation. In entering into the contract the Buyer acknowledges that it has not relied on any statement, representation or warranty other than as expressly set out in the quotation or this contract and all warranties or other terms implied by statute or common law are excluded to the fullest extent permitted by law. The Buyer assumes all risk and liability whatsoever resulting from the use of goods supplied whether such goods are used singly or in combination with other materials or substances. Whilst the utmost care is taken to ensure the accuracy of the information and data furnished by the Seller to customers the Seller will not in any circumstances (except as cannot be limited by law) be liable for injuries losses expenses or damage direct indirect or consequential sustained by the Buyer which may in any degree be attributable to the adoption either by the Buyer or by any third party of technical information data or advice given by or on behalf of the Seller in relation to the use of its goods.
6 FORCE MAJEURE.
The Seller shall not be liable to the Buyer or be deemed to be in breach of contract by reason of any delay in performing, or failure to perform, any of the Seller’s obligations in relation to the goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control, for example, (but without limitation) act of God, riots, lock-outs, strikes or disturbances wherever taking place, want of raw materials or fuel, accident, fire, flood, breakdowns of or accidents to machinery.
7 NOTIFICATION OF CLAIM.
The Buyer shall give the Seller notice in writing of any claim of any defect in the quality or condition of the goods or shortages of delivery or other claim within twenty-one days of delivery followed by a complete claim in writing within a further nine days. The goods shall be preserved intact as received for the period from receipt until expiry of 21 days from notification of the claim within which time the Seller’s agent shall have the right to attend the Buyer’s premises to investigate the complaint. If the Buyer does not comply with all of the requirements of this condition the Seller shall have no liability in respect of any defect, failure or other breach. Where a valid claim is made by the Buyer under this condition the Seller may at its discretion replace the relevant goods or refund the relevant part of the price or issue a credit note, in which case the Seller shall have no further liability to the Buyer.
8 LIMITATION OF LIABILITY.
Except as cannot be limited by law, the Seller shall not be liable to the Buyer under the contract or otherwise for loss of profit or for any indirect, special or consequential loss or damage, costs expense, expenses or other claims for compensation whatsoever which arise out of or in connection with the supply of the goods or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with each order shall not exceed the price of the goods supplied under the particular order except in the case of orders which are fulfilled by more than one instalment when the entire liability of the Seller under or in connection with each instalment shall not exceed the price of the good supplied under the particular instalment.
9 RISK AND PROPERTY.
Risk of damage to or loss of the goods shall pass to the Buyer at delivery.
Notwithstanding delivery and the passing of risk in the goods or any other provision of these conditions the title in the goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due and until such time as title in the goods passed to the Buyer:
(a) the Buyer shall hold the goods as the Seller’s 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 the Seller’s property, but the Buyer may resell or use the goods in the ordinary course of its business;
(b) the Seller may at any time require the Buyer to deliver up the goods to the Seller and if 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.
11 TRADE MARKS AND PATENTS.
The Seller is the owner of various trademarks for its products. Buyers manufacturing other materials from any such product and wishing to refer (whether on the materials or not) to the Seller’s trademark therefore may do so only with the written permission of the Seller. If the goods are to be manufactured or any process applied to the goods by the Seller in accordance with the Buyer’s design or specification the Seller shall not be under any liability in respect of any defect in the goods arising out of such design or specification and the Buyer will indemnify the Seller against all damages, penalties, costs and expenses to which the Seller may become liable for as a result of infringement of any patent or other intellectual property rights such use of the Buyer’s design or specification.
If the Buyer shall make default in or commit any breach of any of his obligations to the Seller or if any distress or execution shall be levied upon the Buyer or if the Buyer shall offer to make any arrangement with creditors or commit any act of bankruptcy or insolvency or if any petition in bankruptcy or insolvency shall be presented against him or if the Buyer is a limited company any resolution or petition to wind up such company’s business (other than for the purposes of amalgamation or reconstruction) shall be passed or presented the Seller shall have the right forthwith to determine by written notice to the Buyer any contract then subsisting without prejudice to any claim or right the Seller might have.
No Contract may be cancelled by the Buyer except with the written agreement 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 expenses incurred by the Seller as a result of such cancellation.
14 DEFAULT IN PAYMENT.
Should the Buyer default in paying any sum when it becomes due or should the Buyer be in breach in any respect of the contract the Seller shall have the right (without prejudice to its other rights) in the discretion of the Seller either to suspend all further deliveries until the default is made good, to forthwith terminate by notice any contract with the Buyer then subsisting or to amend future payment terms.
15 EXPORT TERMS.
Unless specified otherwise an expression defined in the then current Incoterms shall have the same meaning in these conditions. Where the goods are supplied for export from the United Kingdom the Buyer shall be responsible for complying with any legislation or regulations governing the importation of the goods into the country of destination and, unless specified otherwise in the quotation, for the payment of any duties on them.
16 LAW AND JURISDICTION.
The construction validity and performance of this contract shall be governed by the law of England and any question dispute or difference which may arise under out of or in connection with or in relation to any order or contract or touching the meaning and construction of the same shall be referred to the exclusive jurisdiction of the English courts.
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 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 affected