The Equipment shall conform to the Sellers applicable specifications and drawings in force at the date of order unless otherwise specified. However any deviation that does not affect materially the performance or utility of the Equipment shall not invalidate any contract or be made the basis of any claim against the or liability of the Seller. Any patent, copyright and design in any plans, drawings, specification, date, estimates and other information, which the Seller shall provide to the Purchaser, shall remain the Sellers property. No contract governed by these conditions shall be a sale by sample unless the Seller expressly agrees in writing.
4. PRICE
- The prices contained in any quotation or price list are based on conditions ruling at the date thereof. If any increase howsoever arising in the cost of the Equipment including but without being limited to any increase in the costs of manufacture or raw material, labour or transport occurs after such date, the Seller shall be entitled (subject to any statute or regulation) to make such addition to the contract price as shall be reasonable in the circumstances.
- Unless otherwise stated the price for the Equipment includes the provision of standard packing suitable for transportation by air, road or rail.
The purchaser shall not be entitled to make any deduction from the price in respect of any set off or counter claim.
5. WARRANTY
The Seller warrants that the Equipment supplied shall be free from defects in material and workmanship under normal use and service for such period of time commencing with effect from the date of first delivery ex - works as the Seller shall notify in writing to the Purchaser (the Warranty Period).
The said warranty shall not apply to any part of the Equipment which can reasonably be deemed expendable, or which in the process of normal use and service could require to be replaced before the expiry of the Warranty Period, including but not limited to fuses, bulbs, air filters and print heads.
The sellers liability under the said warranty shall be limited to the repair or replacement at its option of any part of any Equipment found to be defective within the Warranty Period and notified to the Seller in writing within fourteen (14) days of its first discovery. The sellers shall make no charge for any materials used in effecting any repair or replacement under the said warranty. Any labour costs and other expenses incurred by the Seller in fulfilling its obligations under the said warranty shall be borne by the Purchaser and shall be due and payable upon presentation by the Seller of its invoice therefor.
The Purchaser shall obtain the Sellers prior approval before returning any Equipment or part thereof to the Seller under the said warranty and shall ensure that it is properly packaged so as to provide suitable protection from damage during transit. Failure to observe this condition may invalidate the said warranty in respect of such equipment or part thereof. Transportation costs incurred by either party hereto in sending the said Equipment or the sending party shall pay part thereof to the other under the said warranty in each instance. Any equipment or part thereof so repaired or replaced shall be subject to the said warranty during the balance of the applicable Warranty Period only and replaced items shall become the seller’s property.
If any equipment or part thereof shall be altered, modified or added to by other than the Seller without prior written authorisation of the Seller, then the above warranty will not extend to any defect in such Equipment or part thereof which reasonably can be attributed to such alteration, modification or addition.
6. EXCLUSION OF LIABILITY
The purchaser is relying on its own skill and judgement in relation to the suitability and compatibility of the Equipment supplied under this contract and the Seller accepts no liability whatsoever for any knowledge it or its servants or agents may possess as to the purpose for which the Equipment is supplied. Save as provided in Condition 5 above and in section 12 of the Sale of Goods Act 1979 all conditions, warranties and liabilities whatsoever, whether express or implied, statutory or otherwise, are hereby expressly excluded, and the Seller shall be under no liability for any loss or damage of whatsoever kind, howsoever caused or arising, including but without being limited to any indirect or consequential loss or damage provided that nothing herein contained shall be constructed so as to exclude the liability of the Seller for the negligence or wilful default of itself, its servants or agents in so far as the same results in death or personal injury.
7. PAYMENT
The seller shall be entitled to render its invoices to the Purchaser for any Equipment supplied under any contract concurrent with the delivery ex - works of the same, notwithstanding that such delivery may be delivery in part only of any Purchasers purchase order. The Purchaser shall pay the full amount of any invoice so rendered, without deduction of any sort, not later than thirty (30) days after the date of invoice, unless agreed otherwise. All payments shall be made by the due date as a condition precedent to any future deliveries. Any failure by the Purchaser to pay an invoice by the due date shall entitle the Seller, at its option, to charge the Purchaser “statutory interest” on any sum due, at a rate of eight per cent (8%) per year plus the Bank of England base rate (calculated daily) and / or to treat the contract to purchase Equipment as repudiated by the Purchaser without prejudice to any right to damages which the Seller may have.
8. REPRESENTATION
The Purchaser represents that it will use the Equipment only as a constituent part of computer or other similar integrated systems, having a significant value over the price of the Equipment used in them which the Purchaser produces for sale, hire or lease to others.
9. PROPERTY AND RISK
The property in the Equipment shall remain in the Seller until full payment for the Equipment has been made. Whilst the equipment is in the possession of the Purchaser and before the property in the Equipment has passed to the Purchaser the Purchaser shall keep the Equipment in the same condition as that in which it was delivered and make good any damage or deterioration that occurs. Risk in the Equipment shall pass to the Purchaser when the Equipment is delivered ex - works.
10. DESTINATION CONTROL
Concerning any Equipment or parts thereof and / or technical data related thereto originating in the U.S.A. the Purchaser is required to comply with any requirements of the U.S. Department of Commerce Export Administration Regulations for the time being in force and obtain as necessary the prior written consent of the U.S. Department of Commerce before exporting any such Equipment or parts thereof and / or related technical data from the United Kingdom, or such other country into which it was first imported as the case may be.
The seller shall notify the Purchaser of any such requirement by means of a Destination Control Statement endorsed on the applicable invoice indicating the country of ultimate destination to which the subject Equipment or parts thereof or related technical data is permitted to be delivered under existing authorisation.
THE PURCHASER SHALL BE SOLELY RESPONSIBLE FOR OBTAINING PRIOR WRITTEN CONSENT AS AFORESAID BEFORE EXPORTING EITHER DIRECTLY OR INDIRECTLY, ANY EQUIPMENT OR PARTS THEREOF OR RELATED TECHNICAL DATA FROM SUCH COUNTRY OF ULTIMATE DESTINATION.
11. VOLUME DISCOUNTS
The purchaser shall qualify for any reduction in price appropriate to any particular quantity of the Equipment only if it shall first confirm in writing, without obligation save to the extent of any orders it shall place with the Seller, its intention to purchase and take delivery of such particular quantity during a period not exceeding twelve (12) months. If the purchaser shall fail to purchase and take delivery of the required quantity it shall retrospectively pay the price for the Equipment appropriate to the quantity actually delivered. The seller shall be entitled to render its invoices from time to time for any additional amounts, which fall due as a result thereof, and the Purchaser shall pay the same within thirty (30) days of the invoice date.
12. DELIVERY
The seller shall be entitled to make partial deliveries or deliveries by instalments and these conditions shall apply to each such delivery. Each delivery shall be deemed to be a separate contract and failure to effect any delivery shall not vitiate the contract as to other deliveries. The seller shall be entitled to make an additional charge and / or a price adjustment if a delivery programme is varied at the request of the Purchaser. The trade terms used herein shall be governed by the provisions of Inciters 1953 (latest version for the time being) as issued by the International Chamber of Commerce. The Sellers obligation to deliver any order shall be deemed fulfilled upon delivery in accordance with the applicable trade terms.
13. ORDER CANCELLATION
| The Purchaser may cancel by written notice any outstanding Order provided it should pay to the Seller, a cancellation charge calculated in accordance with the following scale (unless the product is manufactured by Newbury Data Recording Limited to special order):
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Number of days, prior to the agreed delivery date for the Equipment, that written notice of cancellation is received by the Seller.
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Charge per Equipment cancelled and expressed as a percentage of the applicable unit price. |
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7 days or less
8 to 14 days
15 to 30 days
31 to 60 days
More than 60 days |
100%
50%
35%
15%
Nil |
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For products manufactured by Newbury Data Recording Limited, specifically for the customer, cancellation charges will be applied as follows: |
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Number of days, prior to the agreed delivery date for the Equipment, that written notice of cancellation is received by the Seller.
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Charge per Equipment cancelled and expressed as a percentage of the applicable unit price. |
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14 days or less
15 to 60 days
More than 60 days |
100%
60%
20% |
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In addition to the payment of any cancellation charges the Purchaser shall also be required to pay any additional amounts rising pursuant to the application condition 11 above. The purchaser shall pay any cancellation charges or other amounts as aforesaid within thirty (30) days of the Sellers invoice issued in connection therewith.
14. EXCHANGE RATE ADJUSTMENT
The Seller shall notify the Purchaser when any particular contract price expressed in a certain currency is established by the conversion of another currency at certain rates of exchange, giving details of such other currency and the applicable rate of exchange (the Basic Rate).
If on the date of any applicable invoice the actual rate of exchange then prevailing differs from the Basic Rate by three per cent (3%) or more the Seller shall be entitled to adjust the contract price and the amount of such invoice accordingly and the Purchaser shall pay the same.
15. BREACH AND PURCHASERS INSOLVENCY
If the Purchaser shall default in or commit any breach of any of its obligations to the Seller or if any distress or execution shall be levied upon the Purchaser or if the Purchaser shall enter into any negotiations for arrangement or composition with the creditors or commit any act of bankruptcy or if any petition in bankruptcy shall be presented against it or, if the Purchaser is a corporate body, and resolution is proposed or petition presented to wind up the Purchaser or if a Receiver of the Purchasers asset or undertaking or any part thereof shall be determined without prejudice to any other claim or right the Seller might make or exercise.
16. GENERAL PROVISIONS
Force Majeure. The Seller shall not incur liability for failure to perform an obligation under any contract if such failure is the direct result of anything beyond the Sellers control including (without prejudice to the generality of the foregoing any Act of God; refusal, failure to grant suspension or withdrawal of any licence or consent or other act or omission of any government; fire, explosion, flood, breakdown of machinery; strikes, lock-outs, labour disputes; shortage of material fuel components of transport facilities; war, insurrection.
Waivers. Any failure by the Seller to enforce any of these conditions shall not constitute a waiver or affect its right to require the further performance thereof, nor shall its waiver of any breach of these conditions constitute a waiver of any subsequent breach or nullify the effectiveness of any such conditions.
Notices. Any notice to be given by the Seller shall be deemed to be given upon it being posted or sent by telex, cable or telegram to the Purchasers registered office or in the case of an individual or firm to the last known address.
Assignment. The Purchaser shall not assign or transfer or purport to assign or transfer any contracts to which these conditions apply or the benefit thereof to any person whatsoever.
Governing Law. Any contract in all respects shall be governed by and construed in accordance with the provisions of English Law.
Heading. The headings of these conditions are for convenience only and shall have no effect on the interpretation thereof.
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