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Terms and Conditions of Sale
ACCEPTANCE
OF ORDERS
Neat Concepts Limited (“Seller”) sells the Goods
according to these terms and conditions of sale and to the
exclusion of all others. These printed terms shall govern
the sale of the Goods except to the extent specifically varied
by agreement in writing by the parties. Seller hereby objects
to the inclusion of any terms proposed by the customer in
a purchase order or otherwise that are different from or additional
to the terms of this acceptance. Seller rejects such terms,
and the delivery of any products shall not constitute an agreement
to any such terms proposed by the customer.
LIMITED WARRANTY AND REMEDIES
Seller warrants that the Goods supplied hereunder will be
free from defects in material and workmanship for a period
of three months following delivery (the "Warranty Period")
arising under normal use and service. This warranty does not
extend to Goods that have been subject to misuse, accident,
tampering or to improper storage by someone other than an
employee or agent of Seller. This warranty also does not extend
to Goods that have been modified without authorization by
Seller in a manner that causes or contributes to the alleged
defect, or to any dimensional discrepancies found after a
sample has been approved by the customer unless due to workmanship
or materials. THIS WARRANTY IS
EXCLUSIVE, AND SELLER MAKES NO OTHER WARRANTY, EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY,
SATISFACTORY CONDITION OR FITNESS FOR A PARTICULAR PURPOSE. Specifically, but without limiting the foregoing, Seller gives
no undertaking nor makes any representation whatsoever that
Seller's product literature describes or specifies, other
than in general terms, the suitability or compatibility of
any Goods for any specific circumstance. Technical data stated
in Seller's product literature serve only as a guide and do
not form any part of these Conditions of Sale.
If any Goods sold prove to be defective within the Warranty
Period, the customer must notify Seller in writing or by telephone
within that period. Seller will promptly issue a return authorization
for those Goods. No Goods will be accepted for return unless
a return authorization is first obtained from Seller. Seller
shall, at its option, either (i) replace such Goods free of
charge, or (ii) accept the return of such Goods and remit
the purchase price therefor to the customer. THIS
IS THE EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY. IN NO
EVENT SHALL SELLER BE LIABLE FOR ANY DIRECT, SPECIAL, INCIDENTAL
OR CONSEQUENTIAL DAMAGES OF ANY KIND OR FOR ANY LOST PROFITS
OR LOST REVENUE, WHETHER ANY OF THE ABOVE AROSE FROM BREACH
OF WARRANTY, FROM BREACH OR REPUDIATION OF ANY OTHER TERM
OR CONDITION OF SALE, FROM NEGLIGENCE (other than death or
personal injury caused by the negligence of Seller), ON THE
BASIS OF STRICT LIABILITY, OR OTHERWISE. The sole purpose
of this remedy shall be to provide the customer with the replacement
or a refund of the price of nonconforming Goods in the manner
described here. This exclusive remedy shall not be deemed
to have failed of its essential purpose so long as Seller
is willing and able to replace the nonconforming Goods or
to refund the purchase price therefor.
Claims under the warranty will be accepted by Seller only:
(i) when a Good (or a part thereof) has been properly stored,
maintained and used in accordance with good practice and any
relevant instructions from Seller, (ii) is found to be defective
within the Warranty Period, and (iii) when such alleged defect
is notified to Seller in writing within fourteen (14) days
of its first discovery. Any Goods or parts thereof replaced
by Seller or for which Seller has refunded the purchase price
shall become Seller's property. Any Goods or parts thereof
replaced at no charge will be subject to the warranty only
during the balance of the original applicable Warranty Period.
Each party shall bear the freight and insurance costs incurred
when sending any Goods or parts thereof to the other party
in connection with this warranty.
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PRICE
The price of Seller's Goods includes the provision of non-returnable
standard packing (the disposal of which shall be the customer's
responsibility) but does not include the cost of transportation
or sales, excise, use, privilege or other taxes or customs
duties applicable to the sale or shipment of the Goods, all
of which costs shall be borne by the customer.
PAYMENT
Payment for Goods is due at the time(s) specified on the Acceptance
form. If payment is late, the customer shall pay a late payment
charge of the lesser of 4% above the then-current US dollar
base rate published by HSBC Bank plc or the maximum charge
permitted by applicable law on any unpaid amount for each
calendar month (or a portion thereof). Late payment shall
also result in all other invoices owed by the customer to
Seller becoming due and payable by the customer immediately.
If Seller at any time deems itself insecure as to the customer's
financial responsibility, Seller shall have the right to stop
shipments until the Seller receives payment in advance or
security or assurance of payment satisfactory to Seller.
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CANCELLATION
The customer may cancel an accepted order only with Seller’s
consent and upon payment to Seller for any loss. Returns of,
and cancellations of orders for, non-standard goods shall
be subject to charges that shall include (i) Seller’s
direct and indirect expenses (including, but not limited to,
allocable overhead, interest, handling costs and the like)
incurred as a result of acquiring or making commitments to
acquire material or labour to be used in connection with the
customer’s order and (ii) an amount equal to the price
hereunder of any finished Goods or work in progress. In the
case of work in progress, such price shall be not less than
that portion of the stated selling price that corresponds
to the degree of completion of the Goods at the end of a reasonable
shutdown time following Seller’s receipt of written
notice to discontinue production.
DELIVERY; RISK OF LOSS
All shipments shall be made FOB as set out on the Acceptance
form, and the risk of loss or damage to the Goods shall pass
to the customer at the FOB site. At the customer's request
Seller may arrange transport of the Goods at the customer's
cost.
Any shipment or delivery date set out on the Acceptance form
is the date on which Seller in good faith believes the Goods
will be shipped, but such date shall not be binding upon Seller,
and Seller shall not be liable for any late availability or
delivery.
Seller shall be entitled to make partial deliveries by installments,
and these Conditions of Sale shall apply to each delivery.
Each delivery shall be deemed to be a separate contract, and
failure to effect any delivery shall not affect the contract
as to other deliveries.
Notice of any claim for incomplete or incorrect delivery shall
be notified to Seller in writing within 3 days of receipt
by the customer. Claims for non-delivery of Goods must be
notified to Seller within 10 days of the Seller's invoice
date for the relevant Goods (or 30 days for containerized
sea freight shipments).
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OWNERSHIP AND INTEREST
IN THE GOODS
For customers in the United States:
The customer grants to Seller a purchase money security interest
in the Goods purchased hereunder and in all proceeds from
sales thereof, including accounts receivable and cash receipts
until full payment has been made for them ("Seller's
Security Interest"). While the goods are in the possession
of the customer and before Seller has received payment in
full for them: (A) the customer shall keep the Goods in the
same condition as that in which the goods were delivered and
make good any damage or deterioration that occurs and (B)
the customer shall not otherwise grant, attempt to grant,
or allow any creditor to believe it could grant a lien or
charge or other security interest in respect of the Goods.
At Seller's request the customer shall execute such UCC-1
financing statements and other documents as may reasonably
be required from time to time to perfect, or to continue the
perfection of, Seller's Security Interest. The customer hereby
irrevocably appoints Seller as its attorney-in-fact to execute
and record any such financing statement or other document
in its name and on its behalf. A carbon, photographic or other
reproduction of this agreement or of any financing statements
signed by the customer is sufficient as a financing statement
and may be filed as a financing statement in any state to
perfect the security interests granted hereby.
For customers outside the United
States:
Notwithstanding delivery and the passing of risk in the Goods,
or any provision of these Conditions, the property in the
Goods shall not pass to the customer until 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 Seller to the
customer for which payment is then due.
Until such time as the property in the Goods passes to the
customer, the customer shall hold the Goods as Seller's fiduciary
agent and bailee and shall keep the Goods separate from those
of the customer and third parties and properly stored, protected,
insured and identified as Seller's property. Until that time
the customer shall be entitled to resell or use the Goods
in the ordinary course of its business, but shall account
to Seller for the proceeds of sale or otherwise of the Goods,
whether tangible or intangible, including insurance proceeds,
and shall keep all such proceeds separate from any moneys
or property of the customer and third parties and, in the
case of tangible proceeds, properly stored, protected and
insured.
Until such time as the property in the Goods passes to the
customer (and provided the Goods are still in existence and
have not been resold), Seller shall be entitled at any time
to require the customer to deliver up the Goods to the Seller
at the customer's expense and, if the customer fails to do
so forthwith, to enter upon any premises of Seller or any
third party where the Goods are stored and repossess the Goods.
The customer 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 Seller, but if the customer
does so all moneys owing by the customer to Seller shall (without
prejudice to any other right or remedy Seller may have) forthwith
become due and payable.
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GENERAL PROVISIONS
Force Majeure. Seller shall
not be liable for any failure to manufacture or deliver, or
for any delay in the manufacture or delivery of, any Goods
sold hereunder if such failure or delay is caused by acts
of God; fire; storm; strikes; blackouts; labor difficulties;
riots; inability to obtain materials, equipment, labor or
transportation; governmental restrictions; or any similar
cause over which Seller is unable to exercise control.
Waivers. Any failure by
Seller to enforce any of these Conditions of Sale shall not
constitute a waiver or otherwise affect its right to require
the future performance thereof, nor shall Seller's waiver
of any breach of any of these Conditions of Sale constitute
a waiver of any subsequent breach or nullify the effectiveness
of any such provision.
Notices. Any notice or
approval required or permitted under this Agreement shall
be in writing and shall be sent first by facsimile, and then
by registered or certified airmail, postage prepaid, to the
address on the Acceptance form or to any other address designated
by prior notice. Any notice or approval sent by facsimile
shall be deemed to have been received three business days
after its transmission.
Assignment. The customer
shall not assign or transfer any contract to which these Conditions
of Sale apply or the benefit thereof to any other entity or
person whatsoever.
Governing Law. This contract
in all respects shall be governed by and construed in accordance
with the provisions of the law of England (without giving
effect to the choice of law principles thereof).
Dispute Resolution. Any
dispute or controversy arising out of or relating to this
Agreement, whether during or after its term, shall be finally
settled by the courts of England, and Seller and the customer
each irrevocably submits to the jurisdiction of those courts
for that purpose.
Entire Agreement. This Agreement constitutes the complete agreement between
the parties and supersedes all prior understandings or arrangements
between them regarding the subject matter of this Agreement.
No other contracts, warranties, promises or representations,
either oral or in writing, relating to the subject matter
of this Agreement bind either party.
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