Augesco International Limited ("Augesco")
Basis of sale and application of these conditions
- Any contract ("Contract") between Augesco and any person, firm or company ("Buyer") who purchases goods ("Goods") from Augesco, and/or any Contract between any manufacturer or supplier ("the Supplier") for whom Augesco acts as sales agent and any Buyer who purchases goods from the Supplier shall be in accordance with any written quotation of either Augesco or the Supplier (either of which shall be "the Seller" as appropriate) and any sample (where such sample is accepted in writing by the Seller as the standard to which it shall supply or manufacture) and shall be subject to these terms and conditions ("Conditions") to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
- No terms or conditions endorsed on, delivered with or contained in the Buyer's purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
- The provisions of Incoterms® 2010 shall apply in so far as they are incorporated into any contract between the parties but if there is any conflict between the provisions of Incoterms® 2010 and these Conditions the latter shall prevail.
- Each order or acceptance of a quotation for Goods by the Buyer from the Seller shall be deemed to be an offer by the Buyer to buy the Goods subject to these conditions.
- No order placed by the Buyer shall be deemed to be accepted by the Seller unless and until a written acknowledgement of order is issued by the Seller.
- Any variation to these conditions and any representations about the goods shall have no effect unless expressly agreed in writing and signed by an authorized representative of the Seller.
- The Seller’s employees (other than those with written authority) or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed. Nothing in this condition shall exclude or limit the Seller’s liability for fraudulent misrepresentation.
Orders and specifications
- The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
- The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within sufficient time to enable the Seller to perform the Contract in accordance with its terms including details of the specification of the goods and any manufacturing process to be applied to them.
- The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller's quotation unless any variation specified in the Buyer's order is accepted in writing by the Seller.
- The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable legal requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance.
- No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and, where relevant, any expenses incurred by Augesco acting in its capacity as sales agent of the Supplier as a result of cancellation.
Price of the goods and services
- The price of the Goods shall be the Seller's quoted price. All prices quoted are valid for 30 days only or until an order is placed by the Buyer (if earlier), after which time prices may be altered by the Seller without giving notice to the Buyer.
- Except as otherwise stated under the terms of any quotation and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller include packaging where required, transport (to the named port of shipment if the Buyer buys FOB and to the named port of destination if the Buyer buys CFR or CIF) and insurance (if the Buyer buys CIF).
- The price is exclusive of any installation costs and any customs duties and other similar tariffs and any applicable value added tax, which the Buyer shall be additionally liable to pay.
- The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
Terms of payment
- The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
- If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller the Seller shall be entitled to:
- cancel the contract or suspend any further deliveries to the Buyer;
- appropriate any payment made by the Buyer to such of the goods (or the Goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
- charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 5 per cent per annum above the Bank of England base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purposes of calculating interest).
- Delivery of the Goods shall be made by the Seller delivering the Goods on board the vessel at the named port on the date or within the period stipulated and in the manner customary at that port and the Seller shall be under no obligation to give notice under s.32(3) Sale of Goods Act 1979.
- Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
- Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments or their delivery shall not entitle the Buyer to treat the Contract as a whole as repudiated.
- If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer's reasonable control or by reason of the Seller's fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
- store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
- sell the Goods at the best price readily obtainable and charge the Buyer for any shortfall below the price under the Contract and all reasonable storage and selling expenses.
- Where the Seller agrees to sell otherwise than at the Seller's premises, the Seller shall be under no obligation of s.32(2) Sale of Goods Act 1979.
Product safety, regulatory compliance
- The Buyer shall ascertain and comply with applicable laws relating to the Goods and in particular those relating to health and safety. The Buyer shall notify the Seller of such obligations in full and pay all of the Seller's costs of complying with the same.
- The Buyer shall indemnify the Seller against any liability in relation to any breach of the Buyer's obligations under this clause and without restricting the general extent of this sub-clause, any claim by any person arising from use or operation of the Goods save to the extent that the claim arises from any defect in the Goods.
- The Buyer shall ensure that any warning notices displayed on the goods are not removed or obscured and that safe practices in using and disposing of the goods are adopted and complied with.
- After termination (howsoever caused) the provisions of this clause shall continue in full effect.
Risk and title
- The Goods are at the risk of the Buyer from the time when the goods pass the ship's rail at the port of shipment.
- Ownership of the Goods shall pass to the Buyer when the Goods pass the ship’s rail at the port of shipment, except that ownership shall not pass to the Buyer until the Seller has received in full (in cash or cleared funds) all sums due to it in respect of the Goods and all other sums which are or which become due to the Seller from the Buyer on any account.
- Until ownership of the Goods has passed to the Buyer, the Buyer shall hold the Goods on a fiduciary basis as the Seller’s bailee, store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller’s property, not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and maintain the Goods in satisfactory condition and keep them insured on the Seller’s behalf for their full price against all risks to the reasonable satisfaction of the Seller. The Buyer may resell the Goods before ownership has passed to it solely on the following conditions any sale shall be effected in the ordinary course of the Buyer's business at full market value and any such sale shall be a sale of the Seller’s property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale. The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller. The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them. Where the Seller is unable to determine whether any Goods are the goods in respect of which the Buyer's right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer. On termination of the Contract, howsoever caused, the Seller’s (but not the Buyer's) rights contained in this condition 7.3 shall remain in effect.
Exclusion of liability
- The following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of any breach of these Conditions, any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
- Save as expressly agreed in writing by the Seller, the Seller gives no guarantee or warranty, express or implied, upon which the Goods are sold or licensed and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
- Nothing in these Conditions excludes or limits the liability of the Seller for death or personal injury caused by the Seller’s negligence or for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability or for fraud or fraudulent misrepresentation.
- The Seller's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract (and whether resulting from the acts or omissions of the Seller, its employees or agents or otherwise) shall be limited to the Contract price; and the Seller shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
- Where any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller, the Seller shall be entitled to replace the Goods (or the part in question) free of charge delivered FOB only or provide the customer with a credit note but the Seller shall have no further liability to the Buyer.
- The Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer.
- The Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller's approval.
- The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of its obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller's reasonable control, including but not limited to act of god, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance or requisition, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party), difficulties in obtaining raw materials, labour, fuel, parts or machinery, power failure or breakdown in machinery.
- For the avoidance of doubt, Augesco is a party to the Contact only to the extent that it may benefit from clause 2.5 and shall have no liability to either the Seller or the Buyer under this Contract.
Export / import terms
- The Buyer is responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon and shall obtain at its own cost such import licences and other consents in relation to the Goods as are required from time to time and if required by the Seller the Buyer shall make those licences and consents available to the Seller prior to shipment of the Goods.
- The Buyer shall be responsible for arranging, testing and inspection of the Goods at the Seller's premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
Intellectual property rights
- The Buyer acknowledges that all copyright, database rights, topography rights, design rights, trade marks, trade names, utility models, patents, domain names and any other intellectual property rights of a similar nature (whether or not registered) subsisting anywhere in the world in or associated with the Goods ("the Intellectual Property Rights") are the Seller’s (or its licensor's) property and nothing in this Contract shall be construed as conferring any licence or granting any rights in favour of the Buyer in relation to the Intellectual Property Rights.
- Without prejudice to the generality of clause 10.1, the Buyer shall not be conferred with any rights in any designs or moulds produced in accordance with the Buyer's specification.
- If the Buyer orders goods to be manufactured or requires any process to be applied to goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller's use of the Buyer's specification.
- The Buyer shall not use (other than pursuant to this agreement) or seek to register any trade mark or trade name (including any company name) which is identical to, confusingly similar to or incorporates any trade mark or trade name which the Seller owns or claims rights in anywhere in the world.
- If at any time it is alleged that the Goods infringe the rights of any third party or if, in the Seller's reasonable opinion, such an allegation is likely to be made, the Seller may at its option and its own cost modify or replace the Goods in order to avoid the infringement.
- The Buyer shall promptly and fully notify the Seller of any actual, threatened or suspected infringement of any Intellectual Property Rights of the Seller which comes to the Buyer's notice and will assist the Seller (at the Seller's expense) to take any such action as is necessary in the Seller's view to defend its rights in the applicable territory.
- The Buyer shall promptly and fully notify the Seller of any claim by any third party that comes to the Buyer's notice that the sale or advertisement of the Goods infringes the Intellectual Property Right of any person and if so requested by the Seller's shall (at the Buyer’s expense) do all such things as may be reasonably required to assist the Seller in taking or resisting any proceedings in relation to any such infringement or claim.
- Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
- No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
- If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
- The parties irrevocably agree that this Contract shall be governed by the laws of England and Wales and that any dispute hereunder shall be subject to the exclusive jurisdiction of the English Courts.