(a) All goods are quoted for and supplied by the Seller and accepted by the Buyer on these terms and conditions. Nothing contained in any order from the Buyer or elsewhere shall supplement, qualify, override or modify these terms and conditions and the seller shall not be deemed to accept any other terms of the buyer or any such modifications by failing to object to provisions contained in any order or other communication from the buyer. In the event of a conflict between any terms and conditions set out in any order by the buyer and these terms and conditions, these terms and conditions shall prevail unless otherwise agreed in writing by a Director of the Seller.
(b) The seller’s catalogues, price lists, advertising literature, drawings, specifications and any documents submitted with any quotation are intended only to give a general description of the goods and contents thereof may not be relied on by the Buyer as a representation or warranty nor shall they otherwise constitute or form any part of the contract.
Unless previously withdrawn, the seller’s offer to supply the goods (the quotation) is valid for 30 days from the date on which it is sent to the Buyer.
(a) The price payable by the buyer will be that specified by the Seller in its invoice.
(b) The price is exclusive (unless otherwise expressly stated) of Value Added Tax, but inclusive (unless otherwise expressly stated) of customs duties and levies and delivery and transportation costs to the sellers’ premises. Where information is subsequently submitted by the Buyer which involves material alterations to the quantity, specification or method of manufacture of the goods, the Seller may amend the price to cover any additional costs arising from such alteration.
(a) Unless different credit terms are agreed the buyer shall pay the price within 30 days from the date of the invoice. Time is of the essence of this clause. In addition to its other rights, the Seller shall be entitled to charge interest at the rate of 8% per annum above the Bank of England’s base rate from time to time in force on all payments whether or not notice of default is given by the seller. Interest shall accrue on a daily basis.
(b)The Buyer shall not be entitled to set off any same sums payable hereunder against any claims which the Buyer may have against the Seller under this contract or otherwise howsoever.
The seller will endeavor to supply goods that comply with any expressly agreed specifications and description and with any sample. However such specifications and descriptions are approximate only and minor deviations (including but without prejudice to the generality of the foregoing deviations in colour, markings, measurements, and weight) shall not constitute variations from specifications, description or sample.
Cancellation and Return
The buyer shall not be entitled to cancel any order once accepted without the prior agreement of the seller, and on terms that protect the seller against loss. The seller will not accept the return of goods for credit or exchange without prior agreement in writing.
The buyer shall indemnify and keep indemnified the seller against any proceedings or claim resulting from infringement of copyright, patent, trademark, design right or other rights of the privilege of any third party arising from the buyer’s design, specification or instruction or from the seller’s compliance therewith.
(a) Whilst the seller will endeavor to deliver the goods by the specified date or dates for delivery, such date or dates are estimated dates only and the seller shall not be liable for failure to deliver on such dates. Time shall not be of the essence in relation to those dates. The seller will notify the buyer of any substantial change in those dates.
(b) If the buyer fails to promptly fulfill the terms of payment on the due dates then the seller as its option may defer further deliveries or may cancel the contract in relation to all or part of the undelivered balance of the goods. The seller reserves the right prior to making any delivery to require from the buyer satisfactory security for payment.
Notwithstanding the above provisions, risk in goods shall pass to the buyer upon delivery by the seller to the buyer’s agent or carrier.
(a) The seller warrants that the goods will be of merchantable quality and will conform (subject to permitted variation under Clause 7 hereof) to expressly agreed specifications.
(b) All other warranties, whether expressed or implied by statute, common law or otherwise as to qualify, fitness (including fitness for any purpose made by the buyer) or otherwise are (to the extent allowed by law) excluded from the contract and the buyer in selecting the goods shall be deemed to have relied entirely on its own skill and judgment.
(c) The seller shall not be liable in any event for errors or omissions in drawings or samples after they have been approved by the buyer and may rely on all information supplied by the buyer.
(d) Under no circumstances shall the seller be liable to the buyer for any consequential or indirect loss incurred by the buyer or any other person or persons whatsoever as a result of any act, omission, negligence, or default of the seller, its servants or agents other than negligence resulting in personal injury or death.
(a) The buyer shall be deemed to have accepted the goods as undamaged and complete and as complying (to the extent hereby required) with any relevant description, specification and sample unless:
(i) in the case of non-delivery, notice is given to the seller and to any carrier of the goods within 14 days of invoice date.
(ii) in the case of shortage, damage or loss, the buyer shall notify the seller and the carrier of the goods in writing thereof within 14 days of delivery.
(iii) in the case of a defect of non compliance, the buyer shall notify the seller in writing thereof within 30 days after delivery
(b) The buyer shall accept in full and final settlement of any claim in respect of shortage, damaged, defective or non-complying goods, either replacement for such goods (or in case of the shortage, delivery or such shortage) or (at the seller’s option) a credit note in respect of the price thereof.
(a) The title to the goods shall remain with the seller until all sums owing to the seller by the buyer under the contract otherwise howsoever shall have been paid in full or until the buyer on-sells the goods as authorised in subclause (b) hereof, and so long as title to the goods remains with the seller the buyer shall hold the goods as bailee of the seller on the following terms and ins such a way that the goods shall be readily identifiable and distinguishable from all other goods held by the buyer.
(b) Unless an event under subclause (e) hereof shall have occurred, or unless the buyer shall have been otherwise notified by the seller, the buyer may on-sell the goods by way of bonafide sale at full market value in the ordinary course of business to customers who are not either controlled by the buyer, or are in common control with the buyer.
(c) Where the buyer on-sells the goods, the proceeds of the sale of the goods (or of any goods of which the goods form a part) shall be held separately to the order of the seller until all sums owing to the seller by the buyer under this contract or otherwise howsoever shall have been paid in full.
(d) The authority of the buyer under subclause (b) hereof shall without notice cease if the buyer enters into liquidation whether compulsory or voluntary or compounds with or enter into a scheme of arrangement for the benefits of its creditors, or has a receiver appointed for all or any part of its assets, or shall cease (or threaten to cease) to carry on all or a substantial part of its business, or being an individual, shall commit to an act of bankruptcy.
(e) If at any time any or all of the price is overdue or upon any event under subclause (d) hereof, the seller or its agents may at any time enter the premises or the buyer or its agents to re-take possession of the goods and any goods owned or co-owned by the buyer.
The seller shall not be under any liability whatsoever into event of its failure, delay or default in carrying out all or any of its obligations hereunder due in whole or in part to any circumstances or cause beyond its control, including but without prejudice to the generality of the foregoing, fire, flood, power failure, any inability by the seller or its suppliers to obtain any normal commercial terms, materials, labour or facilities, requisite for the manufacture and supply of the goods, strike, lock-out, industrial dispute or action take by a third party or any other person or firm or company in connection therewith or in consequence of furthermore thereof. BUT this provision shall not in any way limit or restrict the rights of the seller to terminate the contract in accordance with its terms and conditions.
Without prejudice to any right of the seller under the general law to terminate the contract, at any time after the happening of any one or more of the following events, the seller may terminate the contract forthwith by serving notice in writing to the buyer.
(a) Upon the happening of any one or more of the events specified in clause 12(d) & (c) or
(b) Where the seller has agreed to supply the buyer with goods on credit and the limit of the amount of credit fixed by the seller has been exceeded by the buyer whether on the contract or any other contractor in aggregate, or
(c) Where the seller agrees to deliver the goods by installments and the buyer fails to pay for any installment within the time stipulated or refuses to accept to take delivery of any installment.
Effect of Termination
The termination of the contract by the seller for whatever cause shall not prejudice or affect the rights or remedies of the seller against the buyer in respect of any antecedent breach of the contract, and shall not prejudice the rights and remedies of the seller in respect of any sums or sum of money owing from the buyer to the seller.
No waiver or variation by the seller of any of the provisions of the contract shall be duly made or deemed to have been duly made unless in writing and signed by a director of the seller. The failure of the seller to insist on any occasion on the performance of any of the provisions of the contract shall not thereby act as a waiver of such variation.
Any notice required hereunder may be given by recorded post or telefax to the postal address of the PL branch office of the seller or buyer’s address as act out in the contract, or to such address as may have been duly notified to the sender. Any notice given by post will be deemed to have been delivered on the second business day after posting, and any telefax shall be deemed to have been received at the time of transmission.
The buyer will not without the prior consent in writing of the seller assign or transfer the contract or the benefit thereof to any other person.
The proper law of the contract in the law of Poland and these terms and conditions of any contract made hereunder shall be governed by, construed and enforced in accordance therewith. Both the seller and the buyer shall submit to the non-exclusive jurisdiction of the Polish courts.
The clause headings used are for guidance only and are not to affect the meaning or interpretation of these terms and conditions.