Terms and Conditions of Business
1. SELLER’S TERMS AND CONDITIONS PREVAIL AND ACCEPTANCE OF QUOTATIONS
In these terms and conditions (i) ‘the Seller’ means FixOrBuildMyRide FOBMR, a company incorporated and registered in Texas (ii) ‘the Buyer’ means any person, firm, company or other entity accepting the Seller’s offer to purchase goods and (iii) ‘goods’ means any goods, materials or services that are offered for sale by the Seller.
No conditions or stipulations (i) in, or attached to, the Buyer’s purchase order (or other form of order) or (ii) implied by trade, custom, practice or course of dealing, and which, in any such case, are inconsistent with the Seller’s terms and conditions of business, or which purport to add to them or to modify them in any way, will have any effect (and are hereby excluded) unless expressly accepted by the Seller in writing and in advance. In the absence of any acceptance by the Seller (in writing and in advance) of any such variation(s), the Buyer will be deemed (a) to have withdrawn or waived the said conditions or stipulations and (b) to contract solely on the Seller’s terms and conditions of business. Only a director of the Seller has the authority to vary any of the Seller’s terms and conditions of business, including those set out herein.
Any quotation or estimate issued by the Seller is subject to correction for errors or adjustments and should not be considered or construed as an offer which is capable of acceptance by the Buyer. Each order constitutes an offer by the Buyer to purchase the specified goods from the Seller in accordance with these terms and conditions and a contract will not come into existence until the Seller has expressly accepted the Buyer’s order in writing (or in such other manner as the Seller determines). The Buyer must ensure that the terms of each order, and any related specification(s), are clear, complete and accurate.
2. AVAILABILITY, SUPPLY AND DELIVERY
Each order by the Buyer, and acceptance thereof by the Seller, constitutes a separate contract and, for the avoidance of doubt, the Seller is not obliged to accept any order received from any Buyer, or otherwise to conduct business with any prospective Buyer, at any time (whether or not the Seller has accepted orders from, or otherwise conducted business with, such Buyer in the past). Acceptance of the Buyer’s order is at the Seller’s sole discretion and is subject to the relevant goods being available and unsold. The Seller reserves the right to refuse, at any time, any order for goods (or any part thereof) to which these (or any other) terms and conditions apply on grounds of non-availability, or on any other grounds or basis, and the Seller shall incur no liability to the Buyer (or to any other party) in respect of any such refusal. Upon acceptance of an order by the Seller, the Buyer will be sent a receipt confirming the contract including details of the order.
The Seller reserves the right to make delivery (where this forms part of the contract with the Buyer) by installment unless specified to the contrary in the contract terms and expressly agreed to by the Seller in writing. Where installment deliveries are made by the Seller, the Buyer shall accept, and make payment for, the relevant goods on a pro-rata basis. Each installment shall constitute a separate contract and, as such, any delay in the delivery of, or any defect in, any such installment will not entitle the Buyer to cancel any other installment.
Delivery periods, except where otherwise stipulated, are effective from the date of written acceptance by the Seller of the Buyer’s order, at the address of the Seller’s branch which handles the Buyer’s account. The Seller will use its reasonable endeavors to comply with any date(s), period(s) or schedule(s) quoted to the Buyer for the delivery of goods but no such date(s), period(s) or schedule(s) shall be of the essence or otherwise contractually binding on the Seller and the Buyer shall have no claim against the Seller in the event of the Seller’s failure or inability, for whatever reason, to perform its contractual obligations by any such date, within any such period or in accordance with any such schedule, unless specifically agreed to in writing (and in advance) by the Seller. Any delivery period(s) stated in any estimates/quotations issued by the Seller are those current at the date of those estimates/quotations and are subject to confirmation by the Seller at the time of acceptance of the Buyer’s order. Unless there is an agreed time or period for delivery, the goods shall be delivered not more than 30 calendar days after the day on which the contract is entered into. Delivery will be completed when the relevant goods arrive at the Buyer’s address specified for delivery in the contract or such other delivery location (e.g. the Buyer’s neighbor) as the Seller deems reasonable where delivery to the specified address is not possible, at which point risk in (but not the title to) the relevant goods will pass to the Buyer.
If the Seller fails to deliver any goods, its liability is limited to any costs/expenses incurred by the Buyer in obtaining replacement goods of a similar description and quality in the cheapest market available, less the price of the goods. However, the Seller has no liability for any failure to deliver the goods to the extent that such failure is caused by a Force Majeure Event or by the Buyer’s failure to provide adequate delivery instructions (or any other instructions that are relevant to the supply/delivery of the goods). Where any goods are sent to the Buyer by route involving transit by water, the Seller is not required to give any notice to the Buyer to enable the Buyer to insure those goods during such transit.
The price charged for goods will be that price which is applicable on the date of dispatch, either as set out in the relevant order or (if no price is set out in the order) in the Seller’s current price list,and tax that is applicable at the relevant time. All price lists issued by the Seller are subject to amendment (and correction for any errors) without prior notice to the Buyer. The Buyer is, therefore, advised to verify with the Seller that any list prices (and/or, as applicable, any estimated or quoted prices) are correct before placing a firm order with the Seller. All prices published, estimated, quoted or agreed by the Seller are dependent upon, and liable to variation in accordance with:
- As applicable, any and all additional transit/transport, insurance and/or packaging costs.
- The performance of any work or services not expressly covered by the Buyer’s order/contract specification but necessary for the due provision of the relevant goods.
- Mistakes and/or omissions in the order and/or any contract specification(s) provided by the Buyer, or any change to any contract specification(s), the delivery date(s) or the quantity/type of goods.
- Special expedition in the completion of any order/contract at the request of the Buyer.
- Any other matters, of any kind, which are outside the control of the Seller (including, without limitation, any increase in taxes and/or in labor, materials and/or other manufacturing costs).
4. PAYMENTS / SETTLEMENT
The payment/settlement terms offered by the Seller are (if requested by the Seller) subject to the receipt by the Seller of satisfactory credit references from the Buyer. The Seller reserves the right (at its sole discretion) to vary its payment/settlement terms if satisfactory references for the Buyer are not forthcoming and will notify the Buyer of any such variation as soon as is reasonably possible. Payment for goods must be received by the Seller in the form of cleared funds no later than thirty (30) days from the date of invoice. Payment is to be made to the bank account nominated in writing by the Seller. Time of payment is of the essence. Where payment is not made by the due date for payment, without limiting the Seller’s remedies, the Buyer must pay interest at the rate of four per cent (4%) per annum above Barclays Bank Plc’s Base Rate (as varied from time to time) on the overdue amount. Such interest will accrue on a daily basis until the date of actual payment of the overdue amount, whether before or after judgment. The Buyer is required to pay the interest together with the overdue amount.
The Buyer is required to pay all amounts due to the Seller in full without any deduction or withholding (except as may be required by law) and the Buyer is not be entitled to assert any credit, set-off or counterclaim against the Seller in order to justify withholding payment of any such amount (in whole or in part). The Seller may, at any time and without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount that is payable by the Seller to the Buyer.
If the Buyer fails to pay to the Seller, on the due date for payment, any sum that is due to the Seller, or if the Seller considers on reasonable grounds that the Buyer will (or may) be unable to pay, or will (or may) be prevented from paying, for goods that have already been delivered by the Seller, the Seller may, at its option and by written notice to the Buyer (i) suspend/postpone any further deliveries (ii) require payment in advance for all or any further deliveries or (iii) terminate the relevant order/contract with the Buyer, in each or any such case, without prejudice to the Seller’s rights in respect of any goods that have already been delivered to the Buyer. In the case of any suspension or postponement of the delivery of any goods, for any of the foregoing reasons (or any other reason), the Buyer will be liable for any increased costs (e.g. additional storage, insurance and/or transit costs) which are incurred by the Seller as a result of any such suspension or postponement. The rights of the Seller set out above are without prejudice to any other rights, of either the Seller or the Buyer, to repudiate any contract(s) made between them.
5. EXPORT / RESALE
The Buyer will not, without the Seller’s prior written permission:
- Export any goods to which these terms and conditions apply, or supply them for export, to any territory which is not within the USA or
- Advertise, canvas or otherwise attempt to sell any goods in, or for export to, any territory which is not within the USA; or
- Sell the said goods to any third party within the USA whose dealings and/or other activities relating to the said goods would constitute a breach of this paragraph 5 if such dealings and/or other activities had been carried out by the Buyer; or
- Actively sell the goods in USA territories reserved for the Seller, its distributors or agents and if any Buyer is in any doubt whatsoever whether any USA territories are reserved for the Seller, its distributors or agents, to consult forthwith with the Seller before supplying the goods.
In instances where the Seller has given prior written permission for the Buyer to undertake any of the activities described in the foregoing provisions of this paragraph 5, the USA customers purchasing the relevant goods for export must (and the Buyer will procure that they will) furnish proof to the Seller of such export within sixty (60) days of taking delivery of the relevant goods.
The Buyer acknowledges that it is contrary to the marketing strategies of the Seller, and would have a detrimental effect on the Seller’s business, if any goods provided to the Buyer under these terms and conditions were to be resold by mail order. The Buyer, therefore, undertakes to the Seller that it will not be (or become) involved, either directly or indirectly, in the provision of such goods by mail order under any circumstances whatsoever and the Buyer further undertakes to use its best endeavors to ensure that any third party to whom such goods are re-sold will not be involved in the provision of the relevant goods to any party by mail order.
The following conditions (together with those stated in clause 6) will apply to any Buyer wishing to sell the Seller’s goods via the internet:
(A) The reputation, brand, goodwill and/or image of the Seller must not (in its sole and reasonable opinion) be damaged, or be likely to be damaged, as a result of the name, appearance or content of the relevant website.
(B) Any third party goods/products being offered for sale on the same website as any of the Seller’s goods must not (in its sole and reasonable opinion) harm, or be likely to harm, the Seller’s brand, goodwill, image or reputation.
(C) Any photographs, banners or advertisements appearing on the same website as any of the Seller’s goods must not (in its sole and reasonable opinion) harm the Seller’s brand, goodwill, image or reputation.
(D) The Seller must be notified by the Buyer in writing prior to the Buyer offering any of the Seller’s goods for sale via the Buyer’s website. In addition, the Seller must be given a reasonable period of time (and, in any event, no less than 14 days) to approve all aspects of the website and the proposed appearance/description of the Seller’s goods on that website.
(E) Any reference to brand names, registered designs, trademarks, images, copyright or any other (registered or unregistered) intellectual property rights owned by the Seller should only be used on the website with the Seller’s prior written approval.
(F) The website must not contain any links or hypertext to any other websites.
6. REQUIREMENTS OF THE BUYER
The Seller’s brand is perceived by customers and the public in general as a distinctive and high quality brand. The good reputation enjoyed by the Seller is based on the intrinsic properties of the goods and the manner in which they are distributed to customers. Therefore, the Seller selects only Buyers with qualified and competent personnel and appropriate premises. As a Buyer you must comply with the provisions hereafter.
The Buyer is hereby authorized to sell the goods only in the Buyer’s place(s) of business with address(es) that are authorized in writing by the Seller (hereafter referred to as the “Premises”). The sale of the Seller’s goods is strictly limited to the Premises and cannot be extended by the Buyer to any other of its other facilities without the prior consent in writing of the Seller. The Buyer agrees to sell the goods in circumstances that strictly comply with their specific characteristics, high quality and the Seller’s brand image. All Buyer’s must satisfy the criteria set forth in this paragraph 6 and is obliged to adhere to and act in accordance with the provisions, instructions, policies and recommendations issued from time to time by the Seller.
The Buyer shall (i) employ a sufficient number of qualified and experienced staff to handle the goods and to provide reliable information and high quality pre-sale service to its customers in relation to the goods; (ii) ensure that staff maintain good knowledge by acquainting themselves with information received from the Seller and by attending and completing training/seminars/factory visits arranged by the Seller from time to time; (iii) provide high quality after-sales service in respect of efficient and customer orientated handling of goods complaints and (iv) operate from the Premises and, in particular; (a) ensure that the Premises are suitable for the retail sale and display of the goods, reflecting the high quality of the brand and having appropriate space for the display of the goods including pattern books. The Seller takes into account all relevant factors in deciding the suitability of the Premises, including the location, facade, sales area, lighting, floor, furniture and fixtures and fittings and decorative condition of the Premises; (b) ensure that the goods are not sold or displayed alongside or in close proximity to products which are incompatible with or prejudicial to the quality, image and reputation of the goods or of the brand name and (c) not sell the goods from premises other than the Premises. The Seller reserves the right to make all relevant inquiries, inspections and investigations in order to establish whether the Buyer satisfies the above criteria. The Buyer is expected to and will co-operate fully with the Seller’s review procedures. The Buyer undertakes to respond to any inquiries within ten (10) days of receiving a request from the Seller.
Whilst the Seller strongly believes in face-to-face promotion of its goods, the Buyer may promote and sell the Products through a internet site and by mail order, provided that the Buyer fulfills the obligations and criteria previously mentioned. The Buyer’s internet site must be owned and administered by and registered under the same company and company name as the Buyer. The address of the internet site must refer to the name of the physical store or the Buyer’s company and company name. The general presentation and layout of the Buyer’s internet site and/or catalogues must meet the required quality standards for the goods, respect the high quality of the brand image and not cause prejudice to the brand. Whenever the Buyer carries inventory of the goods, the Buyer must (i) comply with all reasonable directions or instructions, which the Seller makes to the Buyer from time to time with regard to the presentation of goods on a internet site and in catalogues, (ii) provide customers with appropriate information about the goods, (iii) not represent themselves (and avoid anything which is confusingly similar) on their internet site or mail order sales literature to suggest that the Buyer, its internet site and/or sales literature are owned by the Seller, (iv) provide a secure system for payment if the Seller offers e-commerce, (v) provide high quality pre-sale service to customers, including efficient customer communication and efficient handling of deliveries and product returns and (vi) each year provide the Seller a written report in respect of all sales of goods through (a) the internet and (b) mail order sales for the purposes of customer research according to the Seller’s requirements as advised from time to time.
In addition to the above-mentioned conditions, the Buyer shall (i) use its reasonable efforts in good faith to sell and promote the sale of the goods, in particular, the Buyer shall comply with reasonable requests to use point of sale material supplied by the Seller, (ii) not sell, provide or deliver the goods to anyone other than a consumer or end-user of the goods or a business or organization who complies with this clause 6 in its entirety and, if the Buyer is in any doubt whatsoever whether the purchaser of goods is a business or organization who complies with this clause 6 in its entirety, to consult forthwith with the Seller before supplying the goods, (iii) comply with all reasonable directions or instructions which the Seller makes to the Buyer from time to time with regard to the presentation and display of the goods at the Premises, (iv) refrain from doing anything which in the Seller’s reasonable opinion prejudices, detracts from or harms, the high quality, image and reputation of the Seller, brand name and of the goods, (v) comply with all relevant laws and any statutory modifications thereto and, (vi) ensure that all advertising and promotional materials is accurate in terms of goods description and specification as well as complying with all applicable laws, regulations, regulatory policies, guidelines or codes in each case from time to time in force.
The Seller reserves the right to cease to supply its goods to any Buyer who is in breach of these terms and conditions, and if a Buyer is in breach of paragraphs 5 and/or paragraph 6 the Seller will consider this a material and fundamental breach of these terms and conditions. The Seller may, in its sole opinion, give three (3) months written notice to any Buyer to remedy any breach of these terms and conditions.
7. FRUSTRATION / FORCE MAJEURE
In these terms and conditions, a ‘Force Majeure Event’ means any act of God including (but not limited to) any fire, flood, earthquake, windstorm or other natural disaster; act of any sovereign or government including (but not limited to) any war, invasion, act of foreign enemies, hostilities (whether war is declared or not), civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, nationalization, requisition, destruction or damage to property by or under the order of any government or public or local authority or imposition of any government sanction, embargo or similar action; law, judgment, order, decree, blockade, labor dispute including (but not limited to) any strike, lockout or boycott; interruption or failure of utility service including (but not limited to) electric power, gas, water or telephone service; failure of any transportation or any personnel equipment or machinery, the shortage of any product(s) or material(s) required by the Seller for completion of the relevant order/contract and/or (without prejudice to the generality of the foregoing) any other event or circumstance that is beyond the reasonable control of the party in question.
Neither the Seller nor the Buyer will be liable to the other for any delay in performing, or for any failure to perform, any of its obligations under these terms and conditions that is caused by any Force Majeure Event. The party claiming that the Force Majeure Event has affected the performance of its obligations will promptly notify the other party in writing of the reasons for the delay or stoppage (and the likely duration thereof) and will take all reasonable steps to overcome the delay or stoppage, to bring the Force Majeure Event to a close or otherwise to find a solution by which the relevant order/contract may be performed despite the Force Majeure Event affecting the party in question.
If the party affected by the Force Majeure Event has complied with the foregoing provisions of this paragraph 7, the performance of its obligations under these terms and conditions will be suspended for the period that the Force Majeure Event continues and such party will have an extension of time for performance which is reasonable in all the circumstances. As regards any such delay or stoppage (i) any costs arising from the delay or stoppage will be borne by the party incurring those costs and (ii) either party may, if the delay or stoppage continues for more than thirty (30) continuous days, terminate the relevant order/contract with immediate effect, on giving written notice to the other party and, in any such case, neither the Buyer nor the Seller will be liable to the other for (or in connection with) any such termination.
8. QUALITY AND FITNESS FOR PURPOSE
Quality: all goods supplied by the Seller are warranted (i) to be free from material defects in design, material and workmanship and (ii) to accord, in all material respects, with the Buyer’s contract specification or, if there is no such specification, to be within the normal limits of manufactured quality.
Purpose: any illustrations and/or descriptions of goods given in the Seller’s advertisements and/or printed literature and/or website, and any samples supplied or sold to the Buyer by the Seller, are provided for information purposes only and form no part of the terms of any contract between the Buyer and the Seller. Any recommendation or suggestion relating to the use of any goods which is made by the Seller, either in its technical literature or in response to any specific enquiry (or otherwise), is given by the Seller in good faith but it is for the Buyer to satisfy itself of the suitability of the goods for its own purpose (save that nothing in these terms and conditions shall restrict the Seller’s liability for any fraudulent misrepresentation). Accordingly, the Seller gives no warranty as to the satisfactory quality of any goods or the fitness of any goods for any particular purpose and any implied warranty or condition in relation to any goods (statutory or otherwise) is hereby excluded except in so far as such exclusion is prevented by law. The Buyer acknowledges that it has not relied on any statement, warranty, promise or other representation made or given by (or on behalf of) the Seller which is not set out in these terms and conditions.
Weights/dimensions etc: weights, dimensions and descriptions of goods given by the Seller to the Buyer for any purpose are stated in good faith but are (in all cases) approximate only and will not form part of any contract with the Buyer nor bind the Seller in any way. Any tests which, under the express terms of the contract between the Seller and the Buyer, are to be made on site (i.e. at the Seller’s premises) will be conducted at the Buyer’s sole expense, unless otherwise agreed in writing (and in advance) by the Seller. The Seller expressly reserves the right to withdraw, or amend, the specification of any goods (including, without limitation, any pattern relating thereto) to which these terms and conditions apply, without further notice to the Buyer.
LIMITATION OF LIABILITY: IN ANY EVENT (I) THE SELLER’S LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY OR OTHERWISE) FOR THE QUALITY OR FITNESS FOR PURPOSE OF ANY GOODS THAT ARE SUPPLIED UNDER THESE TERMS AND CONDITIONS OR ON ANY OTHER BASIS, WILL NOT EXTEND TO THE BUYER’S LOSS OF PROFIT, INCREASED COST OF WORKING/LABOUR OR ANY OTHER INDIRECT, CONSEQUENTIAL OR FINANCIAL LOSSES OR DAMAGES WHICH MAY BE INCURRED BY THE BUYER (II) THE SELLER’S MAXIMUM LIABILITY TO THE BUYER IN RESPECT OF ALL LOSSES ARISING UNDER, OR IN CONNECTION WITH, THE SUPPLY OF ANY GOODS TO THE BUYER (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE) WILL NOT EXCEED THE PRICE OF THE GOODS IN QUESTION AND (III) NOTHING IN THESE TERMS AND CONDITIONS LIMITS OR EXCLUDES THE SELLER’S LIABILITY FOR ANY MATTER IN RESPECT OF WHICH IT WOULD BE UNLAWFUL FOR THE SELLER TO LIMIT OR EXCLUDE ITS LIABILITY.
9. OWNERSHIP OF GOODS/BUYER’S INSOLVENCY
The legal and equitable title to any goods supplied under any contract between the Buyer and the Seller will not pass to the Buyer until the price for the goods supplied under that contract (and any other sum due from the Buyer to the Seller under that, or any other, contract) has been paid in full (and in cleared funds) and, until such payment has been made, the Buyer will hold the goods in a strictly fiduciary capacity as bailee for the Seller. Where the goods supplied by the Seller are resold by the Buyer and, at the time of such resale, the legal and equitable title to such goods has not passed from the Seller to the Buyer, the monetary proceeds of any such resale (or, if applicable, any other assets into which such monetary proceeds have been converted by the Buyer) will be held by the Buyer in a strictly fiduciary capacity on trust for the Seller, and the Buyer will account to the Seller for the same to the extent necessary to pay the Seller in full for the goods supplied (and to pay any other sums that are due to the Seller under any other contract). Until such time as the legal and equitable title to those goods supplied by the Seller has passed to the Buyer, or until the resale of those goods, whichever happens first, the Buyer will (i) store the goods separately or otherwise so that they are clearly identifiable as being the Seller’s property (ii) not remove, deface or obscure any identifying mark or packaging on, or relating to, the goods (iii) maintain the goods in a satisfactory condition and keep them insured against all risks, for their full price, from the date of delivery and (iv) give the Seller such information relating to the goods as the Seller may reasonably require from time to time.
If the Buyer (i) is, or becomes, insolvent, bankrupt or subject to any insolvency or bankruptcy (or any equivalent) proceedings in any jurisdiction (ii) commences negotiations with all, or any class, of its creditors with a view to rescheduling any of its debts (or otherwise makes a proposal for, or enters into any compromise or arrangement with, any of its creditors) (iii) is the subject of (or any, or all, of its assets are the subject of) any distress, execution, sequestration or other such legal process, or any application or order relating to the appointment of any administrator, receiver or administrative receiver, or any equivalent or similar event, in any jurisdiction (iv) suspends, threatens to suspend, ceases or threatens to cease to carry on its business (or any part thereof) or is in such a financial position that, in the reasonable opinion of the Seller, the ability of the Buyer to fulfill its obligations under these terms and conditions is in doubt or (v) being an individual, dies or is unable to manage his or her own affairs (for whatever reason), or the Seller reasonably believes that any of the foregoing events is likely to happen and notifies the Buyer accordingly, then, without limiting any other right or remedy available to the Seller, it may cancel or suspend all further deliveries of goods to the Buyer, without incurring any liability to the Buyer and, at the Seller’s option, either (a) all outstanding sums due for goods already delivered to the Buyer will become immediately payable by the Buyer or (b) provided the goods have not been resold, or irrevocably incorporated into another product, the Seller may terminate each contract with the Buyer and require the Buyer to deliver up any and all goods in which title has not passed to the Buyer (and, if the Buyer fails to do so promptly, the Seller may enter any premises of the Buyer, or any third party, where such goods are stored in order to recover them).
10. LOST/DAMAGED/UNDELIVERED GOODS AND RETURN OF GOODS
In respect of any loss of goods from a package or from an unpacked consignment, or as a result of any damage to any part of a consignment, whilst in transit, the Buyer is required to (i) advise the carrier and the Seller in writing (otherwise than by writing on the carrier’s consignment note or delivery document), within seven (7) days of the date of delivery of the consignment or part consignment, and (ii) submit a valued and substantiated claim to the Seller in writing within fourteen (14) days after the commencement of transit. In the computation of the time periods for the foregoing provisions of this paragraph 10, weekends and public holidays are not included. The Buyer will be deemed to have accepted the goods on the expiry of seven (7) days from the date of delivery of the goods to the Buyer except where the Buyer has previously advised the carrier and the Seller otherwise (under this paragraph 10) or where a Force Majeure Event has prevented the Buyer from contacting the Seller within such seven (7) day period.
If the Buyer notifies the Seller in writing, within the seven (7) day period referred to above, that any of the goods do not comply with the Seller’s warranty in paragraph 8 above, and the Seller is given a reasonable opportunity of examining the relevant goods (and the Buyer, if asked to do so, returns such goods to the Seller’s place of business), the Seller will, at its option, either repair or replace any defective goods or refund the price of any defective goods in full. These terms and conditions will apply to any repaired or replacement goods supplied by the Seller. In any event, no goods may be returned by the Buyer unless authorized by the Seller’s sales office, who will raise appropriate collection documentation. In any event, goods may only be returned under the following conditions:
- The Advice Note number must be quoted by the Buyer.
- The goods must be packed by (or on behalf of) the Buyer in such a way as to arrive back at the Seller’s premises in the same condition as they were originally delivered to the Buyer.
However, the Seller will not be liable to the Buyer for any failure of any goods to comply with the Seller’s warranty in paragraph 8 above if
(i) the Buyer makes any further use of such goods after giving written notice to the Seller in accordance with this paragraph 10 and/or alters or repairs such goods (or seeks to do so) without the prior written consent of the Seller
(ii) the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, hanging, use and/or maintenance of the goods or (if there are none) good trade practice
(iii) the defect arises as a result of the Seller following any drawing, design or specification supplied by the Buyer or
(iv) the defect arises as a result of fair wear and tear, willful damage, negligence or abnormal storage and/or working conditions. Except as provided in this paragraph 10, the Seller has no liability to the Buyer in respect of the failure of any goods to comply with the Seller’s warranty set out in paragraph 8 above.
11. SUBSEQUENT PROCESSES
No liability can or will be accepted by the Seller, in any event, for any goods which have been subjected to any further process, treatment or manufacture, or which have otherwise been modified by (or on behalf of) the Buyer, after they have been delivered to the Buyer. The Seller will not be bound, in any way, by any settlement or other agreement between the Buyer and any subsequent owner of the goods, unless the Seller has previously agreed in writing to be a party to such a settlement or other agreement.
12. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
In these terms and conditions, the ‘Intellectual Property’ includes (without limitation) any patent, trade mark, service mark, copyright, design right, moral right, know-how or any other form of intellectual property, whether registered or unregistered and whether existing now or in the future, in any format or media whatsoever, in (or arising in respect of or in connection with) all goods, specifications, designs or other written, printed or graphic materials or images supplied, or made available for inspection, by the Seller to the Buyer. All of the Intellectual Property is, and will remain, the absolute and unencumbered property of the Seller wholly and exclusively. The Buyer is prohibited from using any of the Seller’s Intellectual Property, unless a written license agreement is entered into between the Seller and the Buyer. The Seller and the Buyer agree that they will each, at all times, keep strictly private and confidential any and all confidential information that they acquire from each other as a consequence of contracting with each other under these terms and conditions, except for disclosing any such information
(i) which they may be (and then only to the extent they are) entitled or bound to disclose under compulsion of law or where requested by any regulatory agency or
(ii) to their professional advisers where reasonably necessary for the performance of their professional services.
13. ASSIGNABILITY/THIRD PARTY RIGHTS/WAIVER/SEVERANCE
This contract is made between the Seller and the Buyer as principals and is not assignable by the Buyer without the express and prior written consent of the Seller. A person who is not a party to the contract between the Buyer and the Seller will not have any rights under or in connection with it. Any waiver of any right or remedy under these terms and conditions is only effective if given in writing and will not be deemed to be a waiver of any subsequent breach or default. No failure to exercise, or delay in exercising, any right or remedy provided hereunder (or by law) constitutes a waiver of, nor precludes or restricts the further exercise of, that (or any other) right or remedy. No single or partial exercise of such right or remedy will preclude or restrict the further exercise of that (or any other) right or remedy. If any court or competent authority finds that any provision of these terms and conditions (or part of any such provision) is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions hereof will not be affected. If any invalid, unenforceable or illegal provision of these terms and conditions would be valid, enforceable and legal if some part of it were deleted, the provision will apply with the minimum amount of modification necessary to make it legal, valid and enforceable.
The Buyer has 14 days to inform the Seller of its decision to cancel the contract by providing a clear statement by email or telephone. The Buyer must return the goods at its own cost within 14 days of such cancellation. The Seller will refund the Buyer with the amount paid in relation to the goods to which the cancellation rights apply, including the cost of delivery within 14 days after the day the goods are received by the Supplier. The Seller is entitled to make a deduction from the refunded amount for loss in value of the goods supplied, if the loss is the result of unnecessary handling by the Buyer. The Seller may cancel any order
(i)on the occurrence of a Force Majeure Event which affects its ability to fulfill the order (underparagraph 7 above) or
(ii) if, in the reasonable opinion of the Seller, the order cannot be completed to the required contract specifications. In such case, the Seller will notify the Buyer in writing, as soon as reasonably possible, of the cancellation of the relevant order, and return to the Buyer any sums already paid to the Seller in respect of that order. The Seller will not be liable to the Buyer for any losses, costs, expenses or damages arising out of any such cancellation by the Seller (howsoever caused).
15. ARBITRATION AND GOVERNING LAW
The headings used in these terms and conditions are used for reference purposes only and will not affect the construction, or interpretation, of these terms and conditions. If, at any time, any question, dispute or difference arises between the Buyer and the Seller out of, or in relation to or in connection with, these terms and conditions and/or any contract between the Buyer and the Seller, whether during or after completion of the relevant contract, either party may give to the other written notice of the existence of such question, dispute or difference, and such matter shall then be referred to arbitration, by a single arbitrator appointed jointly by the parties (or, at the request of either party, by the Travis County Texas Courts (or any replacement or equivalent body)) for final resolution. Any such arbitration will take place in Texas and will be conducted in the English language. No payment due by the Buyer to the Seller shall be withheld by the Buyer on account of such pending arbitration. These terms and conditions shall be governed by, and construed in accordance with, the laws of USA and (subject to the foregoing provisions of this paragraph 15) each party agrees to submit to the exclusive jurisdiction of the courts of Texas in connection with any claim or dispute arising out of, or in connection with, these terms and conditions and/or any other contract between the parties.