In these Terms and Conditions of Sale, “Seller” means Orthodynamic Limited; “Buyer” means the person, firm, company or corporation by whom the order is given.
2.1 All orders must be in writing and are accepted subject to these Terms and Conditions of Sale. No terms or conditions put forward by Buyer and no representations, warranties, guarantees or other statements not contained in Seller’s quotation or Acknowledgement of Order nor otherwise expressly agreed in writing by Seller shall be binding on Seller.
2.2 The Contract shall become effective only upon the date of acceptance of Buyer’s order on Seller’s Acknowledgement of Order form or upon the date of fulfilment of all conditions precedent stipulated in the Contract, whichever is the later (the “Effective Date “). If the details of the Goods described in Seller’s quotation differ from those set out in the Acknowledgement of Order Form the latter shall apply.
2.3 No alteration or variation to the Contract shall apply unless agreed in writing by both parties. However, Seller reserves the right to effect minor modifications and/or improvements to the Goods before delivery provided that the performance of the Goods is not adversely affected and that neither the Contract Price nor the delivery date is affected.
VALIDITY OF QUOTATION AND PRICES:
3.1 Unless previously withdrawn, Seller’s quotation is open for acceptance within the period stated therein or, when no period is so stated, within thirty days after its date.
3.2 Prices are firm for delivery within the period stated in Seller’s quotation and are inclusive of (a) Value Added Tax and (b) any similar and other t axes, duties, levies or other like charges.
4.1 Payment shall be made:
(a) in full without set-off, counterclaim or withholding of any kind (save where and to the extent that this cannot by law be excluded); and (b) in the currency of Seller’s order confirmation within thirty days of date of invoice unless otherwise specified by Seller’s Finance Department. Goods will be invoiced at any time after their readiness for dispatch has been notified to Buyer. Without prejudice to Seller’s other rights, Seller reserves the right to:
(i)charge interest on any overdue sums at 4% of the invoiced amount (or such higher rate stipulated by applicable law) during the period of delay;
(ii) suspend performance of the Contract (including withholding consignment) in the event that Buyer fails or in Seller’s reasonable opinion it appears that Buyer is likely to fail to make payment when due under the Contract or any other contract; and
(iii) at any time require such reasonable security for payment as Seller may deem reasonable.
5.1 Unless otherwise stated in Seller’s order confirmation, all periods stated for delivery or completion run from the Effective Date and are to be treated as estimates only not involving any contractual obligations.
5.2 If Seller is delayed in or prevented from performing any of its obligations under the Contract due to the acts or omissions of Buyer or its agents (including but not limited to failure to provide specifications and/or fully dimensioned working drawings and/or such other information as Seller reasonably requires to proceed expeditiously with its obligations under the Contract), the delivery/completion period and the Contract Price shall both be adjusted accordingly.
5.3 If delivery is delayed due to any act or omission of Buyer, or if having been notified that the Goods are ready for despatch, Buyer fails to take delivery or provide adequate shipping instructions, Seller shall be entitled to place the Goods into a suitable store at Buyer’s expense. Upon placing the Goods into the store, delivery shall be deemed to be complete, risk in the Goods shall pass to Buyer and Buyer shall pay Seller accordingly.
6.1 Force Majeure of any kind, unforeseeable production, traffic or shipping disturbances, war, acts of terrorism, fire, floods, unforeseeable shortages of labor, utilities or raw materials and supplies, strikes, lockouts, acts of government, and any other hindrances beyond the control of the party obliged to perform which diminish, delay or prevent production, shipment, acceptance or use of the goods, or make it an unreasonable proposition, shall relieve the party from its obligation to supply or take delivery, as the case may be, as long as and to the extent that the hindrance prevails. If, as a result of the hindrance, supply and/or acceptance is delayed by more than eight weeks, either party shall have the right to cancel the contract. Should the Seller’s suppliers fail to supply him in whole or in part , the Seller shall not be under obligation to purchase from other sources. In such cases, the Seller shall have the right to distribute the available quantities among his customers while at the same time taking into account his captive requirements.
DELIVERY, RISK & TITLE:
7.1 Unless otherwise expressly stated in the Contract, the Goods will be delivered to the destination named in the Contract. Risk of loss of or damage to the Goods shall pass to Buyer upon delivery as aforesaid and Buyer shall be responsible for insurance of the Goods after risk has so passed. Delivery terms used in the Contract shall be defined in accordance with the latest version of Incoterms.
7.2 Title to the Goods shall pass to Buyer upon delivery in accordance with the laws of the land (Applicable from the Seller). Claims for shortfalls in quantity or for incorrect delivery shall be void if made more than 14 days after receipt by the customer.
DEFECTS AFTER DELIVERY:
8.1 Seller warrants
(i) subject to the other provisions of the Contract, good title to and the unencumbered use of the Goods;
(ii) that Goods supplied by Seller and/or Seller’s Affiliates shall conform with Seller’s specifications therefore and be free of defects in materials and workmanship. Seller will make good by the supply of a replacement part or parts, any defects which, under proper use, care and maintenance, appear in Goods of Seller’s Affiliates’ supply and which are reported to Seller within 12 calendar months after their delivery (the “Warranty Period”) and which arise solely from faulty materials or workmanship: provided always that defective items are returned to Seller at Buyer’s cost carriage and insurance prepaid within the Warranty Period. Repaired or replacement items will be delivered by Seller at Seller’s cost to Buyer. Goods replaced in accordance with the Kenyan Law.
8.2 Notwithstanding Clause 8.1, Seller shall not be liable for any defects caused by: fair wear and tear; materials or workmanship made, furnished or specified by Buyer; non-compliance with Seller’s storage, installation, operation or environmental requirements; lack of proper maintenance; any modification or repair not previously authorized by Seller in writing. Seller’s costs incurred in investigating and rectifying such defects shall be paid by Buyer upon demand. Buyer shall at all times remain solely responsible for the adequacy and accuracy of all information supplied by it.
8.3 The foregoing constitutes Seller’s sole warranty and Buyer’s exclusive remedy for breach thereof. No representations, warranties or conditions of any kind, express or implied, shall apply as to satisfactory quality, merchant ability, fitness for any particular purpose or any other matter with respect to any of the Goods.
PATENT, ETC. INFRINGEMENT:
9.1 Subject to the limitations set forth in Clause 10, Seller shall indemnify Buyer in the event of any claim for infringement of Letters Patent, Registered Design, Design Right, Trade Mark or Copyright (“Intellectual Property Rights”) existing at the date of formation of the Contract arising from the use or sale of the Goods, against all reasonable costs and damages awarded against Buyer in any action for such infringement, or for which Buyer may become liable in any such action, provided always that Seller shall not be liable to so indemnify Buyer in the event that:
(i) such infringement arises as a result of Seller having followed a design or instruction furnished or given by Buyer, or the Goods having been used in a manner or for a purpose or in a country not specified by or disclosed to Seller prior to the date of the Contract or in association or combination with any other equipment or software, or
(ii) Seller has at its expense procured for Buyer the right to continue to use the Goods or has modified or replaced the Goods so that the Goods no longer infringe.
(iii) Buyer has failed to give Seller the earliest possible notice in writing of any claim made or to be made or of any action threatened or brought against Buyer and/or Buyer has failed to permit Seller, at Seller’s expense, to conduct and control any litigation that may ensue and all negotiations for a settlement of the claim, or
(iv) Buyer has made without Seller’s prior written consent any admission which is or may be prejudicial to Seller in respect of any such claim or action, or
(v) the Goods have been modified without Seller’s prior written authorization.
9.2 Buyer warrants that any design or instructions furnished or given by it shall not cause Seller to infringe any Intellectual Property Rights in the performance of Seller’s obligations under the Contract and shall indemnify Seller against all reasonable costs and damages which Seller may incur as a result of any breach of such warranty.
LIMITATION OF LIABILITY:
Supplier’s maximum aggregate liability for any and all losses, liabilities, expenses (including legal expenses), damages, claims or actions incurred under or in connection with a specific order or a particular blanket order (CALL-OFF order) issued, arising in or by virtue of breach of contract, tort (including negligence), misrepresentation, breach of statutory duty, strict liability, infringement of intellectual property rights or otherwise, shall in no circumstances exceed a sum equal to the total price of the Call -Off in question.
STATUTORY AND OTHER REGULATIONS:
11.1 If Seller’s obligations under the Contract shall be increased or reduced by reason of the making or amendment after the date of Seller’s quotation of any law or any order, regulation or bye-law having the force of law that shall affect the performance of Seller’s obligations under the Contract, the Contract Price and delivery period shall be adjusted accordingly and/or performance of the Contract suspended or terminated, as appropriate.
COMPLIANCE WITH LAWS
Buyer agrees that all applicable import, export control and sanctions laws, regulations, orders and requirements, as they may be amended from time to time, including without limitation those of the United States, the European Union and the jurisdictions in which Seller and Buyer are established or from which items may be supplied, and the requirements of any licenses, authorizations, general licenses or license exceptions relating thereto will apply to its receipt and use of goods. In no event shall Buyer use, transfer, release, export or re -export any such goods in violation of such applicable laws, regulations, orders or requirements or the requirements of any licenses, authorizations or license exceptions relating thereto. Buyer agrees furthermore that it shall not engage in any activity that would expose the Seller to a risk of penalties under laws and regulations of any relevant jurisdiction prohibiting improper payments, including but not limited to bribes, to officials of any government or of any agency, instrumentality or political subdivision thereof, to political parties or political party officials or candidates for public office, or to any employee of any customer or supplier. Buyer agrees to comply with all appropriate legal, ethical and compliance requirements.
DEFAULT, INSOLVENCY AND CANCELLATION:
Sellershall be entitled, without prejudice to any other rights it may have, to cancel the Contract forthwith, wholly or partly, by notice in writing to Buyer, if
(a) Buyer is in default of any of its obligations under the Contract and fails, within 30 (thirty) days of the date of Seller’s notification in writing of the existence of the default, either to rectify such default if it is reasonably capable of being rectified within such period or, if the default is not reasonably capable of being rectified within such period, to take action to remedy the default or
(b) on the occurrence of an Insolvency Event in relation to Buyer. “Insolvency Event” in relation to Buyer means any of the following:
(i) a meeting of creditors of Buyer being held or an arrangement or composition with or for the benefit of its creditors being proposed by or in relation to Buyer;
(ii) a chargeholder, receiver, administrative receiver or similar person taking possession of or being appointed over or any distress, execution or other process being levied or enforced (and not being discharged within seven days) on the whole or a material part of the assets of Buyer; (iii) Buyer ceasing to carry on business or being unable to pay its debts;
(iv) Buyer or its directors or the holder of a qualifying floating charge giving notice of their intention to appoint, or making an application to the court for the appointment of , an administrator;
(v) a petition being presented (and not being discharged within 28 days) or a resolution being passed or an order being made for the administration or the winding-up, bankruptcy or dissolution of Buyer; or
(vi) the happening in relation to Buyer of an event analogous to any of the above in any jurisdiction in which it is incorporated or resident or in which it carries on business or has assets. Seller shall be entitled to recover from Buyer or Buyer’s representative all costs and damages incurred by Seller as a result of such cancellation, including a reasonable allowance for overheads and profit (including but not limited to loss of prospective profits and overheads).
14.1 No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound.
14.2 If any clause, sub-clause or other provision of the Contract is invalid under any statute or rule of law, such provision, to that extent only, shall be deemed to be omitted without affecting the validity of the remainder of the Contract.
14.3 Buyer shall not be entitled to assign its rights or obligations here under without the prior written consent of Seller.
14.4 Seller enters into the Contract as principal. Buyer agrees to look only to Seller for due performance of the Contract.
14.5 GOODS PROVIDED HEREUNDER ARE NOT SOLD OR INTENDED FOR USE IN ANY NUCLEAR OR NUCLEAR RELATED APPLICATIONS.
(i) accepts Goods in accordance with the foregoing restriction,
(ii) agrees to communicate such restriction in writing to any and all subsequent purchasers or users and
(iii) agrees to defend, indemnify and hold harmless Seller from any and all claims, losses, liabilities, suits, judgments and damages, including incidental and consequential damages, arising from use of Goods in any nuclear or nuclear related applications, whether the cause of action be based in tort, contract or otherwise, including allegations that the Seller’s liability is based on negligence or strict liability.
14.6 The Contract shall in all respects be construed in accordance with the laws of Belgium excluding, however, any effect on such laws of the 1980 Vienna Convention on Contracts for the International Sale of Goods and to the fullest extent permitted by law, shall be without regard to any conflict of laws or rules which might apply the laws of any other jurisdiction. All disputes arising out of the Contract shall be subject to the exclusive jurisdiction of the Belgium courts.
14.7 The headings to the Clauses and paragraphs of the Contract are for guidance only and shall not affect the interpretation thereof.
14.8 All notices and claims in connection with the Contract must be in writing.