In these Conditions:
Act of Insolvency: any one or more of the following namely the passing of a resolution or the presentation of a petition for winding-up, bankruptcy or for the appointment of an administrator, the appointment of a receiver and/or manager or administrative receiver over the whole or any part of the Buyer's undertaking and assets, the making of a proposal for a voluntary arrangement within the Insolvency Act 1986 or of a proposal for any other composition scheme or arrangement with or the calling by the Buyer of any meeting of its creditors generally, the levying of execution or distress or diligence on any of its assets, the failure to pay its proper debts as and when due and anything analogous to any of the foregoing under the law of the jurisdiction where the Buyer is established;
Brexit: The UK ceasing to be a member state of the European Union and ceasing to be subject to the transition or implementation arrangements provided for by Part 4 of the withdrawal agreement between the UK and the European Union negotiated under Article 50(2) of the Treaty of the European Union which sets out the arrangements for the UK's withdrawal from the European Union.
Buyer: the party with whom OEM contracts;
Conditions: these Terms and Conditions;
Contract: the contract made between OEM and the Buyer for supply of the Goods which are subject to these Conditions;
Force Majeure Event: any circumstance not in a party’s reasonable control, including (i) acts of God, flood, drought, earthquake or other natural disaster; (ii) epidemic or pandemic; (iii) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; (iv) nuclear, chemical or biological contamination, or sonic boom; (v) any law or any action taken by a government or public authority, including those caused directly/indirectly by the coronavirus (COVID-19 outbreak or any other epidemic or pandemic), imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent; (vi) collapse of buildings, fire, explosion or accident; (vii) a delay in supply of the Goods caused by Brexit, including but not limited to in any jurisdiction, export/import delays, new customs processes and procedures, the loss of, or change to, or the imposition of, new requirements for any licence or consent required by a party to perform the Contract; (viii) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the party seeking to rely on this Clause, or companies in the same group as that party); (ix) non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this condition); and (x) interruption or failure of utility service;
Goods: all or any of the goods works and materials to described in an Order;
Order: any order from the Buyer to OEM for the supply of goods in such form as OEM may determine from time to time, which shall incorporate the terms of these Conditions;
Order Acknowledgement: has the meaning given to it in condition 2(2).
(1) These Conditions shall apply to all Orders between OEM and the Buyer.
(2) An Order by the Buyer shall constitute an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Order shall only be deemed to be accepted when OEM issues a written acceptance of the Order (Order Acknowledgement), at which point the Contract shall come into existence.
(3) The terms of the Contract shall consist of the particulars set out in the Order, OEM’s Order Acknowledgement, and these Conditions. Any term in OEM’s Order Acknowledgement which is at variance with these Conditions or the Order shall prevail over these Conditions and the Order, which shall be construed accordingly, except with regard to price in respect of which condition 6(2) shall prevail.
(4) No other terms (whether implied by trade, custom, practice or course of dealings, contained in any document issued by the Buyer or in any written or oral communication between the parties) shall apply to the Contract nor shall these Conditions or the particulars contained in OEM’s Order Acknowledgement be modified or varied without OEM’s written agreement. OEM shall be entitled to amend technical specifications of the Goods without notice.
(5) No particulars contained in any samples, drawings, advertising matter, catalogues or other publications supplied by OEM nor any verbal representation by any employee or agent of OEM shall be part of the Contract, have any contractual force, nor shall they be treated as constituting any representation on the part of OEM.
(6) In order that these Conditions and the particulars in OEM’s Order Acknowledgement shall be a complete record of the agreement between the parties with regard to the sale of the Goods, the Buyer must ensure that any pre-contractual representation on which the Buyer wishes to rely has been specified in those particulars. In entering into the Contract, the Buyer does not rely upon any such representation made by or on behalf of OEM which has not been so specified. The Buyer is responsible for ensuring that the terms of the Order and any applicable specification are complete and accurate.
(7) The Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any document of the Buyer that is inconsistent with these Conditions.
(1) A quotation for Goods given by OEM shall not constitute an offer. A quotation shall only be valid for a period of 30 days from the date of issue, unless OEM withdraw or extend the quotation prior to that date.
(2) Quotations are information only and are not offers to contract. There shall be no binding contract until OEM has accepted the Buyer’s order by despatching the Order Acknowledgement or invoice.
(1) Although OEM wiII endeavour to deliver Goods within any delivery time specified in OEM’s Order Acknowledgement, that delivery time is an estimate only and not a term of the Contract and as such, time shall not be of the essence. If OEM fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. OEM shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by any event referred to in Condition 4(2) or the Buyer’s failure to provide OEM with adequate delivery instructions or any other information or any other instructions that are relevant to the supply of the Goods.
(2) Any such time specified for delivery in the Order Acknowledgment shall be extended by any period during which the manufacture or delivery of the Goods or other work by OEM in connection with the Contract is delayed due to a Force Majeure Event. OEM shall not be liable for any delay in delivery of the Goods caused by a Force Majeure Event. For the avoidance of doubt, the occurrence of a Force Majeure Event shall not release the Buyer from its obligations to pay any sums due under the Contract.
(3) If as a result of a Force Majeure Event, any such delivery time is extended by more than 90 days, the Buyer shall be entitled to give one month’s written notice to OEM terminating the Contract for the specific delivery which has been affected by the Force Majeure Event only.
(4) OEM shall be entitled to deliver the Goods by instalments and/or in advance of the estimated date. Each delivery shall constitute a separate contract to which these Conditions shall apply. Failure by OEM to deliver any one or more of the instalments or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
(5) Unless otherwise stated in OEM’s Order Acknowledgement, OEM will deliver to the Buyer’s premises and will charge separately for packing, carriage and handling.
(6) Delivery takes place on completion of the unloading of the Goods from the delivery vehicle, or the uncoupling of the delivery vehicle containing the Goods at the delivery location, or, where the Goods are to be collected from OEM’s premises, the earlier of the Buyer collecting the Goods and 3 days after OEM notifies the Buyer that the Goods are ready for collection (Delivery).
(7) The delivery by OEM of a greater or lesser quantity provided for in the Contract, the delivery of other goods not provided for in the Contract or the delivery of Goods only some of which are defective, shall not entitle the Buyer to reject all of the Goods delivered.
(8) In order that OEM can comply with its carrier’s conditions, a claim in respect of error in quantity or type of Goods or in respect of the condition of the Goods Delivered must be made in writing to OEM within 3 days of Delivery or to the carrier and OEM within 5 days of Delivery. Failure to make such claim shall constitute unqualified acceptance of the Goods and waiver by the Buyer of all claims relating to error in quantity or type of Goods Delivered or relating to the condition of Goods Delivered. Similarly, if any Goods invoiced by OEM are not received by the Buyer, the Buyer must notify OEM within 14 days of the date of invoice, failing which the Buyer will be liable to pay for the Goods in full.
(9) OEM shall at its option make good any short delivery or issue in respect of the condition of the Goods notified in accordance with Condition 4(8) by repair or replacement of such Goods and save as provided in this Condition shall not be liable for any such short delivery, condition of the Goods or damage in transit nor for any loss, financial or otherwise resulting directly or indirectly therefrom. In no event shall OEM be liable to the Buyer in connection with any damage or loss in transit where delivery takes place at OEM's premises.
(10) If the Buyer fails to take delivery of the Goods, fails to collect the Goods within 3 days of notification by OEM to the Buyer that the Goods are ready for collection, or fails to give OEM adequate delivery instructions after notification by OEM that the Goods are ready OEM may (without prejudice to its other rights and remedies): (i) store the Goods (on its own or any third party's premises) and charge the Buyer for its reasonable costs (including without limitation VAT, costs of storage, carriage and insurance); and/or (ii) sell the Goods at any time and after deducting all costs and expenses account to the Buyer for any excess over the price already paid under the Contract or charge the Buyer for any shortfall between the Contract price and such costs and expenses.
(1) Where the Goods are being delivered, the risk in the Goods shall pass to the Buyer upon despatch of the Goods from OEM's premises. Where the Goods are being collected from OEM’s premises, the risk in the Goods shall pass to the Buyer immediately on OEM sending notice to the Buyer that the Goods are ready for collection.
(2) Notwithstanding delivery and the passing of risk, property in and title to the Goods shall remain with OEM unless and until OEM has received payment in full of all sums owing to OEM under the Contract and any other contract with the Buyer whatsoever.
(3) OEM shall be entitled at any time forthwith to revoke the Buyer's power to deal with the Goods (and such power to deal shall automatically cease if the Buyer shall commit or be subject to any Act of Insolvency); and the Buyer shall not make any modification to the Goods or their packaging or alter remove or tamper with any marks, numbers or other means of identification used on or in relation to the Goods. Upon termination of the Buyer's power to deal with the Goods, the Buyer shall place the Goods at the disposal of OEM and OEM and its servants and agents are hereby irrevocably authorised without the need for consent of the Buyer or any third party but using only such force as may be necessary, to enter upon any premises of the Buyer or any third party for the purpose of removing the Goods.
(4) If any of the foregoing provisions of this Condition shall be invalid or unenforceable such invalidity or unenforceability shall not affect the remaining provisions of the Conditions or the Contract.
(1) Unless otherwise stated in OEM’s Order Acknowledgement, prices for the Goods shall be Ex-Works, and shall be exclusive of VAT, packing, carriage, insurance, and any other costs or duties (including export costs), all of which shall be the subject of additional charges. VAT shall be charged where appropriate at the rate prevailing at the relevant tax point.
(2) Any price quoted by OEM is based upon costs current at the date of quotation and shall not constitute an offer. The price charged to the Buyer under the Contract may be changed to take account of costs current at the date of invoice and/or any factors beyond OEM’s control. Such changes may include, but are not limited to, fluctuations in rates of currency where the Goods or any part thereof, are sourced outside of the UK.
(1) Subject to prior written agreement to the contrary, OEM shall be entitled to invoice the Buyer for the price of the Goods on or at any time after OEM has notified the Buyer that the Goods are ready for collection [or the Goods have been Delivered].
(2) If OEM has granted the Buyer monthly account credit facilities, then payment of the price must be made in full and in cleared funds within 30 days of the date of invoice. Otherwise, payment must be made prior to Delivery. Payment shall be made direct to OEM in the currency invoiced. Time for payment is of the essence. The Buyer shall not be entitled to exercise any right of set-off, counterclaim, withholding or deduction against payment due to OEM.
(3) OEM shall be entitled to charge daily interest on any overdue sum at the rate of 5 per cent annum above the Bank of England base rate from the due date for payment to the actual date of payment (both before and after judgment).
(4) Where payment is agreed to be made by instalments, any delay or default by the Buyer in making payment in respect of any one instalment shall render all the remaining instalments due forthwith, and interest will be charged in accordance with condition 7(3) on the aggregate amount of the instalments with immediate effect until the date of actual payment.
(5) OEM may appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between OEM and the Buyer) as OEM may see fit (notwithstanding any purported appropriation by the Buyer).
(1) If under proper use the goods develop any material defect during the warranty period due to defective articles or materials supplied OEM shall subject to the remaining provisions of this condition 8 at its own expense and option replace or repair such goods as are defective so as to remedy the defects. The buyer must give OEM notice of any alleged defects as soon as it becomes apparent, and shall (unless otherwise instructed by OEM ) retain the goods at the buyer’s premises for inspection by OEM and give OEM adequate facilities to investigate the complaint at the buyer’s premises. The “warranty period” shall mean the period specified in OEM ’s order acknowledgement as the warranty period and if no such period is specified, then a period of 12 months from the date of delivery of the goods.
(2) Except as expressly stated above there shall be excluded from the contract any warranty, condition, or statement, express or implied, statutory, or otherwise, as to satisfactory quality, and/or fitness of the goods for any particular purpose and sections 13 to 15 of the sale of goods act 1979 are, to the fullest extent permitted by law, excluded from the contract.
(3) OEM shall not be liable for the goods failure to comply with the warranty set out in condition 8(1) if: the buyer makes further use of the goods after giving notice in accordance with 8(1); the defect arises because the buyer failed to follow OEM ’s oral or written instructions in respect of the goods or good trade practice regarding the same; the buyer alters or repairs the goods without the written consent of OEM; or the defect arises as a result of fair wear and tear, accident, wilful damage, negligence or abnormal storage or working conditions or any act omission or neglect of the buyer, its employees or its agents.
(4) OEM shall not be liable to the Buyer in contract, tort (including without limitation negligence) and/or breach of statutory duty or otherwise, for any loss, costs, expense or damage which the Buyer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the Contract by OEM its servants, its employees or its agents, in a sum which is greater than the Contract price.
(5) OEM shall not be liable to the Buyer in contract tort (including without limitation negligence) and/or breach of statutory duty, or otherwise, for any loss of profits loss of goodwill loss of contracts and/or any indirect or consequential (including economic) loss of any kind including loss of profits and/or loss of production which the Buyer may suffer by reason of any act, omission, neglect or default (including negligence) in the performance of the Contract by OEM, its employees, its servants or agents.
(6) No provision of this Condition, these Conditions or the Contract shall operate so as to exclude OEM's non-excludable liability in respect of death or personal injury caused by the negligence of OEM, its employees, its servants or its agents; to affect the statutory rights (including under the Consumer Rights Act 2015) of the Buyer where Goods are sold to a Buyer dealing as a consumer as defined in the Consumer Rights Act 2015; to exclude the application of Section 12 of the Sale of Goods Act 1979; or to exclude liability for fraud or fraudulent misrepresentation.
(7) These Conditions shall apply to any repaired or replaced Goods supplied by OEM.
(8) OEM reserves the right not to accept goods for credit or replacement from the buyer that are not accompanied and clearly marked with a returned materials authorisation (RMA) number that has been previously agreed with and issued by OEM. An RMA number shall remain open and valid for 30 days from date of issue by OEM. If OEM have failed to receive the goods to which the RMA number relate within this period, then OEM reserve the right to cancel the RMA. the risk and the property in the goods remain with the buyer unless otherwise notified by OEM. OEM will not accept returned goods that clearly show signs of physical damage to external packaging where it is possible that damage to the goods may have occurred as a result. The buyer shall be responsible for the carriage costs of the returned goods unless otherwise agreed in writing by OEM.
(1) Without prejudice to any rights and remedies available to it, OEM shall be entitled, forthwith on written notice to the Buyer either to terminate the Contract in whole or in part and/or any other contract with the Buyer or to withhold performance of all or any of its obligations under the Contract and/or any other contract with the Buyer (and on the giving of such notice all monies outstanding from the Buyer to OEM shall become immediately due and payable) if:-
(i) any sum owing to OEM from the Buyer on any account whatsoever shall be unpaid after the due date for payment (in which event OEM shall have a general lien for any such sum on all and any property of the Buyer in its possession); or
(ii) the Buyer shall commit or be subject to any Act of Insolvency; or
(iii) the Buyer shall commit any breach of any contract (including without limitation the Contract) with OEM; or
(iv) the Buyer’s financial position deteriorates to such extent that in OEM’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy
(2) In the event of a suspension of performance OEM shall be entitled, as a condition of resuming performance, to require pre-payment, or such security as it may require.
(3) Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect, notwithstanding the termination.
(1) Any term or expression used in the Contract and which is defined in the provisions of Incoterms 2000 (or any subsequent revision thereof) shall import the respective obligations of Buyer and Seller into these Conditions, but in the event of conflict these Conditions shall prevail.
(2) Where the Goods are supplied for export from the United Kingdom, the provisions of this condition 10 shall (subject to any special terms agreed in writing between OEM and the Buyer) apply notwithstanding any other provision of these Conditions.
(3) Unless otherwise agreed in writing between OEM and the Buyer, the Goods shall be delivered Ex-Works and OEM shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979 and the Buyer shall be responsible for all export procedures.
(4) The Buyer may test and inspect the Goods at OEM's premises before shipment at such time to be agreed by OEM.
(5) OEM shall have no liability for any claim in respect of any defect in the Goods which would be apparent on testing or inspection (whether or not the Buyer arranged or carried out any test or inspection) and which is made after shipment, or in respect of any damage during transit.
(1) The Contract may be cancelled in whole or in part by the Buyer only with OEM’s prior written consent and upon the condition that the Buyer shall indemnify OEM in full against all loss, damages, costs, expenses, claims, and other liabilities awarded against or incurred by OEM as a result of or in connection with the cancellation.
(1) It shall be the responsibility of the Buyer to ensure that all requirements applicable to the Contract, whether statutory, regulatory, municipal and/or otherwise howsoever, (including without limitation any relating to the importation or use of the Goods in the country of destination and for the payment of duties thereon) are duly complied with. It shall be a condition precedent to the performance by OEM of its obligations under the Contract that all necessary licences, permits and consents shall have been obtained by the Buyer.
(2) Neither party shall have any liability for any failure to perform or for any delay in the performance (other than as to payment) of any of its obligations under the Contract caused by any factor beyond its reasonable control.
(3) No failure or delay on the part of OEM to exercise any of its rights under the Contract shall operate as a waiver of nor shall any waiver by OEM of any breach by the Buyer of any of its obligations under the Contract affect the rights of OEM in the event of any further or continuing breach.
(4) No one other than a party to the Contract and their permitted assigns shall have any right to enforce its terms.
(5) OEM shall be entitled to terminate the Contract by giving not less than 30 days’ written notice to the Buyer if there is a change in control of the Buyer (within the meaning of section 1124 of the Corporation Tax Act 2010). If the Buyer has such a change of control, it shall notify OEM within 7 days of that change of control.
(6) The Contract is personal to the Buyer, who shall not assign or in any way part with the benefit without OEM's prior written consent. OEM may freely assign the Contract in whole or in part.
(7) Each and every obligation contained in these Conditions shall be treated as a separate obligation and shall be severally enforceable as such notwithstanding the non-enforceability of any other such obligation.
(8) These Conditions and the Contract shall not create or evidence, or be deemed to create or evidence, any agency or partnership between OEM on the one hand and the Buyer or any third party on the other.
(9) Any notice required to be given in writing under the Contract shall be given, where possible, by email (and in the case of any notice given to OEM, the email must be sent to the following email address [email protected] and otherwise by first class post addressed to the registered office of the party for which it is intended, or to such other address as may be notified in writing in accordance herewith for the purpose, and shall be deemed to have been received, in the case of an email, upon sending of the email and, in the case of a letter, forty-eight hours after posting. In proving service by letter, it shall be sufficient to show that the envelope containing the notice was properly addressed and stamped and duly posted.
(10) The Contract shall be governed by the laws of England and Wales.
(11) The parties irrevocably submit to the exclusive jurisdiction of the English courts, save in the case of a Buyer who has no assets within the jurisdiction of the English courts and who is established in a country which will not enforce the judgement of the English Courts. In those circumstances OEM may if it chooses refer any disputes arising out of the Contract to arbitration under the Rules of Conciliation and Arbitration of the International Chamber of Commerce, such arbitration to take place in London.
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