TERMS AND CONDITIONS OF SALE
In these Terms and Conditions of Sale, the following words shall have the following meanings: “Company” shall mean Bollards Direct USA LLC or any member of the Group that contracts on these terms and conditions from time to time “Group” shall mean Bollards Direct USA LLC and its subsidiary companies whether directly or indirectly owned “Goods” shall mean the products or materials supplied by the Company or proposed to be supplied by the Company “Buyer” shall mean the corporate entity, firm or person proposing to purchase Goods and/or Services from Company and/or to which the Goods and/or Services are supplied “Quotation” shall mean the quotation and any related order confirmation prepared by Company and provided to Buyer related to the proposed purchase of goods and/or services from Company “Services” shall mean the whole or any part of the services supplied by the Company or proposed to be supplied by the Company
2. EXISTENCE AND TERMS OF THE AGREEMENT BETWEEN COMPANY AND BUYER
2.1 Any and all purchases and proposed purchases from the Company of goods and/or services shall be subject to the terms and conditions set forth in the applicable Quotation and these Terms and Conditions of Sale and no other additional or different terms or conditions (except that any design provided under separate Design Services Terms & Conditions of the Company or Group, and design advice/services related thereto, shall additionally be subject to those Design Services Terms & Conditions, which shall supplement and be considered part of these Terms and Conditions of Sale with respect to such design and design advice/services of the Company or the Group). In the event of any conflict between the provisions of the Quotation and the provisions of these Terms and Conditions of Sale, the provisions of the Quotation shall prevail and apply for the applicable purchase or proposed purchase of Goods and/or Services. As used herein, references to these “Conditions” shall mean the Quotation together with these Terms and Conditions of Sale (incorporating the Design Services Terms & Conditions, as applicable) as and to the extent modified (if at all) by the express text of the Quotation. Acceptance of any order by the Company is expressly conditioned on the Buyer’s assent to all of these Conditions and acknowledgement that these Conditions constitute the complete and exclusive statement of the terms and conditions to which the purchase or proposed purchase described in such order is subject. Such assent and acknowledgement by the Buyer shall be deemed given unless the Buyer expressly notifies the Company in writing to the contrary by the earlier of (i) 5:00 p.m. New York time on the fifth (5th) business day following the Buyer’s receipt of the Company’s acknowledgment or confirmation of the Buyer’s order or (ii) noon New York time on the business day prior to the day on which the Company begins or is scheduled to begin delivery of any ordered Goods or Services. Such requirement that the Buyer give notice to the contrary shall not be satisfied by the Buyer presenting the Company with alternative pre-printed terms and conditions related to the purchase or proposed purchase, whether via an acknowledgment, purchase order, shipping instructions or otherwise. These Conditions shall supersede all prior communications, negotiations and oral or written statements of any kind made by the Company, the Buyer or their respective representatives regarding the terms and conditions applicable to the sale of goods and/or services by the Company to the Buyer.
2.2 Prices quoted by the Company in the Quotation are not binding but shall remain open for 45 days from the date of the Quotation unless earlier withdrawn by the Company. All orders are subject to acceptance by the Company and do not become binding obligations of the Company unless and until accepted by the Company. The Company reserves the right in its sole discretion to refuse orders.
2.3 Without limiting the foregoing, the Company expressly limits any acceptance of any offer or deemed offer by the Company of any transaction involving the sale of its goods and/or services to the Buyer solely to these Conditions. No terms or conditions which add to, vary from or conflict with, or are otherwise additional to or different from, these Conditions that are proposed by the Buyer or included in any communication (whether in written, oral or electronic form) by the Buyer to the Company in connection with any order, purchase or proposed purchase will be or become part of such order, purchase or 2 proposed purchase, and any and all such additional or different terms and conditions, whether or not they materially alter the order, purchase or proposed purchase, are hereby objected to and rejected by the Company, without any further notice of such objection and rejection. Any such proposed terms or conditions shall be void and these Conditions shall constitute the complete and exclusive statement of the terms and conditions to which the order, purchase or proposed purchase is subject. These Conditions may be modified only by a written instrument executed by an authorized officer of The Company and an authorized representative of the Buyer.
3. CANCELLATION/SUSPENSION OF DELIVERIES
3.1 Once an order is accepted by the Company, no cancellation by the Buyer is permitted except where expressly agreed by the Company in writing.
3.2 The Buyer will in the event of agreed cancellation by the Buyer indemnify the Company fully against all charges costs and losses (including loss of profit) sustained by it as a result of the cancellation. The Company’s certificate as to the amount of such loss shall be final.
3.3 The Company may without prejudice to its other rights, suspend or cancel further deliveries and/or work under any contract between the parties hereto if the Buyer shall fail to make payment of any sum on its due date for payment or if the Buyer shall become insolvent or have any form of insolvency proceedings or action (whether or not involving the intervention of a court) taken against it, including (but without limitation) any receivership, petition or order for administration, winding up or bankruptcy, any proposal for or voluntary arrangement with creditors or proposal to compound with creditors, or any procedures similar to any of them under the laws of the US, any state or any other jurisdiction whatsoever. In such circumstances the Company shall be entitled to immediate payment from the Buyer of a proportionate part of the price in respect of Goods and/or Services already delivered and/or manufactured to the order of and/or purchased for and/or carried out for, the Buyer together with an amount representing anticipated further loss sustained or to be sustained due to such suspension or cancellation in each case as certified by the Company.
3.4 The Company may suspend or cancel any contract for the supply of Services and/or Goods if at any time the price under the contract taken together with all other sums owing to members of the Group exceeds the credit limit set for the Buyer by the Company and/or the Group, whether or not such credit limit has been communicated to the Buyer.
3.5 The Company may without prejudice to its other rights, where the Buyer refuses, is unable or fails to take delivery of Goods by the dates specified therefor or where no date is specified within a reasonable period either: 3.5.1 put the Goods into its stock at the Buyer’s risk and expense and submit an invoice for payment as though the Goods had been delivered on the date when they were transferred to stock; or 3.5.2 sell or offer to sell the Goods or any part of them to other interested parties in which case the Company shall be entitled to recover from the Buyer as liquidated damages the amount of gross profit foregone by the Company on the sale to the Buyer as certified by the Company on the basis of the price that would have applied at the date for delivery.
3.6 If any of the Goods referred to in Section 3.5 are not sold within a period of 90 days or realise less than their full cost to the Company (including a pro-rata proportion of fixed and variable overheads) within that time, the Company may recover from the Buyer in addition to gross profit as liquidated damages the amount of the cost not recovered by sale as certified by the Company. Upon payment of all sums certified as due to the Company the Buyer shall be entitled to any Goods which have not been disposed of by sale within the period of 90 days.
4.1 Unless otherwise stated the price payable for the Goods and Services will be that set out in the Company’s Quotation and confirmed by its acceptance of the Buyer’s order, or, if higher or if no such quotation was given, the price currently charged by the Company at the date of delivery of the Goods and/or Services. The price and any fees costs and disbursements expressed to be payable to the Company shall be deemed to be exclusive of any manufacturer’s tax, sales or use tax, excise tax, duty, customs, inspection or testing fee, or any other tax, fee or charge of any nature imposed by any governmental authority on or with respect to any transaction (all of which shall be the responsibility of the Buyer), unless expressly stated otherwise.
4.2 The Company reserves the right at its sole discretion at any time before delivery of the Goods to adjust the price to take account of any increase in the price to the Company of goods, or services, or raw materials, labour or other inputs used in the production of the Goods or goods of that kind or of the Services, or to take account of any increase in taxation or duty payable, or to take account of any currency fluctuation increasing the cost of producing or purchasing the Goods or goods of that kind or the supply of Services in each case measured in US Dollars.
4.3 The prices in the Quotation or otherwise quoted by the Company assume that delivery will be made on normal working days during normal working hours. For deliveries agreed to be made on Saturdays, Sundays, public holidays or outside normal working hours the Company reserves the right to make an extra charge.
5. TERMS OF PAYMENT
5.1 The Company shall be entitled to payment of the price payable in respect of the Goods upon dispatch of the Goods and in respect of Services when the Services are in the opinion of the Company substantially complete. Issue of an invoice by the Company shall be taken as confirmation of delivery and/or that the Company is of the opinion that the Services are substantially complete. Payment is due by the end of the month following the date of the invoice, although the Company may require the Buyer to pay within a shorter time period at any time by written notice. Time is of the essence with respect to payment dates for all transactions or proposed transactions for Goods and/or Services between the Company and the Buyer.
5.2 If the Buyer fails to make payment when due for any Goods and/or Services in accordance with these Conditions, the Company may, without prejudice to any other right or remedy available to it, serve notice on the Buyer to make immediate payment for all goods and/or services supplied by the Company, whether or not such payment would otherwise be due.
5.3 The Company reserves the right to charge interest of 5% per annum above the corporate base rate of interest publicly announced from time to time by HSBC Bank USA during the applicable period on all overdue accounts, such interest being deemed to accrue and be compounded on a daily basis from the due date for payment.
5.4 The Buyer shall not be entitled to withhold, deduct or set off against any sum payable to the Company any amount or claim whatsoever, including but without limitation in respect of any loss or damage which the Buyer alleges that it has sustained due to any act or default of the Company or its agents or employees. In particular but without limitation, the Buyer may not set off any amount of loss or damage arising from alleged defects in Goods received or Services supplied by the Company.
6.1 Where Goods are delivered to the Buyer, the Buyer shall be responsible for unloading unless the Company has expressly agreed to unload the Goods. Where Goods are collected by the Buyer at the Company’s premises, the Company will load the Buyer’s vehicle.
6.2 Where the Company delivers to the Buyer’s premises the Company reserves the right to make an extra charge where unloading of the Goods is delayed. Where the Company delivers to the Buyer’s Premises the Buyer shall provide reasonable assistance in unloading the Goods.
6.3 The Company may refuse to deliver the Goods to any location where access is considered by it to be unsuitable for the safe passage of its vehicles. Where delivery is made to the Buyer’s premises the Buyer will indemnify the Company against any loss suffered during unloading or as a result of the access way being unsuitable. 6.4 The Company shall not be liable for any overloading of vehicles of the Buyer or its hauliers. 6.5 Whilst the Company will seek to deliver in accordance with the date agreed for dispatch or delivery the Company shall not be liable for any loss whatsoever or howsoever arising caused by its late or non- delivery or by the failure to make Goods ready for collection on the due date. Time is not of the essence with respect to dispatch or delivery and a delay in dispatch or delivery will not entitle the Buyer to any damages or to repudiate any of its obligations.
6.6 The Company reserves the right to dispatch and/or make delivery by installments and to tender a separate invoice in respect of each installment. 4 6.7 When dispatch and/or delivery is to be by installments or the Company exercises its right to deliver by installments or if there be delay in the dispatch and/or delivery of any one or more installments for whatever reason, this will not entitle the Buyer to any damages or to repudiate any of its obligations. 6.8 Carriage is chargeable on all dispatches where the Company undertakes delivery. When the Buyer requests delivery by a specific carrier any difference in cost between the Company’s normal method of carriage and that requested will be payable by the Buyer.
7. RISK AND THE PASSING OF PROPERTY
7.1 Risk of loss with respect to the Goods shall pass to the Buyer when the Goods leave the dispatching premises of the Company (or of the Company’s supplier if delivery is to be made directly to the Buyer) regardless of whether they remain on a vehicle of the Company or not.
7.2 Notwithstanding risk of loss with respect to the Goods passing to the Buyer, title to Goods shall not pass to the Buyer until payment is received by the Company for the Goods and there are no other amounts then outstanding from the Buyer to the Company in respect of other goods or services supplied by the Company.
7.3 The Buyer is licensed by the Company to use or to agree to sell Goods delivered to the Buyer. Subject to this license, the Goods shall be stored at the Buyer’s premises in such a way as to be clearly identifiable as belonging to the Company and the Company shall be entitled to enter upon the premises where the Goods are stored to recover possession.
7.4 The Buyer’s power of sale and use under this Section 7 shall automatically cease if the Buyer becomes insolvent or suffers any form of insolvency proceedings or action (whether or not involving the intervention of the court) against it (including but without limitation) any receivership, petition or order for administration, winding up or bankruptcy, any proposal for or voluntary arrangement with creditors or proposal to compound with creditors, or any similar procedures under the laws of the US, any state or any other jurisdiction whatsoever. Such power of sale and use shall also be terminable at any time by notice of the Company to the Buyer.
8.1 The Company shall have no liability for any damage or shortages that would be apparent on careful inspection by the Buyer unless a written complaint is delivered to the Company within seven days of delivery detailing the alleged damage or shortage and the Company is allowed access to inspect the affected Goods before any use is made of them.
8.2 Subject to Section 8.1 the Company shall make good any shortage in the Goods for which it is responsible and where appropriate repair or at its option replace any Goods damaged during loading or unloading by the Company, but otherwise shall be under no liability whatsoever arising from such shortage or damage.
9. LIMITED WARRANTY; LIMITATION ON LIABILITY
9.1 The Company warrants that it has title to and the unencumbered right to sell the Goods. Subject to each qualification, exclusion, exception, reservation or limitation set forth in these Conditions (including without limitation Section 12), as a limited warranty, the Company warrants to the Buyer (and to no other person; there are no intended beneficiaries of this limited warranty other than the Buyer) that (a) all Goods manufactured by the Group and sold to the Buyer will conform to the specifications for such Goods of the Company or the Buyer (as applicable) to the extent required by the Quotation and will be free of defects in workmanship and material under normal use and regular service and maintenance for a period of twelve (12) months from date of dispatch of such Goods (or later installation date if the Goods are installed by the Company) and (b) the Services performed by the Company or other Group members shall be performed using reasonable care and skill.
9.2 THE EXPRESS LIMITED WARRANTY MADE IN SECTION 9.1 IS IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE OF SECTION 9.1. THE COMPANY HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, WHETHER OR NOT THE PURPOSE OR USE HAS BEEN DISCLOSED TO THE COMPANY IN SPECIFICATIONS, DRAWINGS 5 OR OTHERWISE, AND WHETHER OR NOT THE COMPANY’S GOODS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY THE COMPANY FOR BUYER’S USE OR PURPOSE. THE COMPANY’S LIABILITY TO BUYER ON ANY AND ALL CLAIMS, WHETHER BASED IN TORT, CONTRACT, WARRANTY OR OTHERWISE, SHALL IN NO EVENT IN THE AGGREGATE EXCEED THE GREATER OF (A) $50,000 US DOLLARS OR (B) AN AMOUNT (IN NO EVENT EXCEEDING $1,000,000 US DOLLARS) EQUIVALENT TO FIVE TIMES THE PURCHASE PRICE FOR THE PORTION OF THE GOODS OR SERVICES SOLD TO BUYER BY THE COMPANY WITH RESPECT TO WHICH BUYER HAS EXERCISED ITS WARRANTY RIGHTS (IT BEING RECOGNIZED AND AGREED BY THE BUYER THAT SUCH MAXIMUM CAP OF $1,000,000 US DOLLARS ON THE COMPANY’S AGGERGATE LIABILITY SHALL APPLY IN ALL CIRCUMSTANCES). IN NO EVENT SHALL THE COMPANY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE WHATSOEVER, INCLUDING DAMAGES FOR ANY ECONOMIC LOSS, BUSINESS INTERRUPTION, DELAY TO OTHER WORKS OR COMPLETION OF ANY PROJECT OR WORK, LOSS OF PROPERTY, LOSS OF OR INTERRUPTION TO PRODUCTION, LOSS OF REVENUES, LOSS OF PROFITS, LOSS OF ANTICIPATED SAVINGS, LOSS OF USE, DAMAGE TO REPUTATION, INCREASED COSTS OF WORKING, LIABILITY TO PAY COMPENSATION TO THIRD PARTIES, DISTRESS OF END CUSTOMERS OR ADMINISTRATIVE OR MANAGEMENT COSTS OR TIME, TO BUYER OR ANY THIRD PARTY.
9.3 The Buyer expressly acknowledges that for all purposes the ability and expertise of the Buyer in evaluating any description of or information as to the Goods is equal to that of the Company and the Buyer has not relied on the skill and judgement of the Company in selecting the Goods for any purpose.
9.4 The Company undertakes no responsibility for the suitability of sites or foundations or for supports of any nature, or for compliance with any local laws or regulations with regard to the Goods, or for the fulfillment of any special requirements which the Buyer may be bound to observe or fulfill.
9.5 If Goods are made or amended or Services are carried out to any specification, instruction, information or design supplied by the Buyer or any third party on behalf of the Buyer, then the suitability and accuracy of that specification, instruction, information or design will be the sole responsibility of the Buyer and the Company shall have no responsibility to verify it for suitability or accuracy. In such circumstances, the Buyer will in addition indemnify the Company against any infringement of any patent, design right, registered design, trade mark, trade name, copyright or other intellectual property right arising from the sale and/or supply of the said Goods or Services and any loss, damage or expense the Company may incur because of any such infringement or alleged infringement in any country or jurisdiction.
10.1 The Company shall be bound to supply only those Services specifically identified in the Quotation and any related order confirmation. Any Services involving the preparation of designs for any structure and/or services at a site and/or services involving advice in relation to the installation of Goods shall be taken to exclude any obligation to undertake structural or load bearing calculations or verification (and the Buyer shall undertake such work itself and verify any designs or calculations provided) unless the Quotation or the related order confirmation or an express written variation signed by an authorized person on behalf of the Company identifies expressly that the Company shall undertake such calculations or verification.
10.2 The Buyer shall supply as soon as reasonably practicable all information or documents reasonably required or requested by the Company in order to allow the Company to carry out the Services.
10.3 Should the Buyer fail to provide any information or documents required or requested for the purposes of carrying out the Services, the Company may either (at its sole option) delay the carrying out of the Services for so long as the information or documents are outstanding or make such assumptions as it in its sole discretion regards as appropriate, or refuse to carry out the Services. In such circumstances the Buyer shall have no right to damages or any other relief.
10.4 The Company shall not be responsible for any error or defect in the Services which is a result of an inadequacy or error in the information supplied by the Buyer.
10.5 If at the Buyer’s request the Company undertakes any services additional to the Services, or by reason of any design changes requested by the Buyer or any other circumstances beyond the Company’s control the Company is required to undertake extra work, a fair and reasonable additional hourly fee will be payable as certified by the Company.
10.6 The Company shall exercise reasonable care and skill in the provision of the Services supplied.
10.7 Subject always also to the other restrictions on duty or liability set out in these terms and conditions the Company shall have no liability (whether in misrepresentation, contract, tort or otherwise whatever) in respect of any expression of opinion, recommendation, design, selection of materials, calculations, information or literature provided by it or which it is not contracted to provide except to the extent that such matter is incorporated expressly in the Quotation or order confirmation of the Company or by an express written variation signed by an authorized person on behalf of the Company.
10.8 It shall be the exclusive obligation of the Buyer, unless the Company is expressly obligated to undertake such work in the Quotation, to ensure that all ground conditions, foundations, fixing points, ports or other structural elements in, on or onto which Goods are to be installed by the Company or others, are such that they will provide satisfactory support and stability to the Goods and any other dependant item or structure so that once installed the performance of the Goods in their intended function will not be adversely affected by such matter. Except as provided in these Conditions the Company shall have no liability or obligation in respect of any such matter.
10.9 The Company shall have no liability in respect of any loss or damage alleged to arise by reason of any Services (whether in contract, tort or otherwise whatever) if the Company has recommended the use of certain of its products in particular applications related to the Buyer’s project but instead other products are used in whole or part as a result of a decision by any party other than the Company.
11.1 Any design, calculations, data, drawings or other materials (the “Materials”) produced by the Company whether specifically for the Buyer or not shall belong to the Company together with all copyright, design rights and other intellectual property rights related to them. The Buyer shall have a non-exclusive license to use the Materials only in relation to the specific project in respect of which the Materials were prepared or supplied by the Company. The license shall only allow the use of the Materials provided the Buyer purchases from the Company all of the goods or materials set out in or required or described by or in the Materials that the Company is in the business of supplying.
11.2 The Company shall not be liable for any use by the Buyer or its nominees of any drawings and other documents for any purposes other than those for which they were originally prepared by the Company.
12.WARRANTY LIMITATIONS AND REMEDIES 12.1 The prices charged for the Goods and Services are based strictly on the qualifications, exclusions, exceptions, reservations and limitations of the Company’s limited warranty and liability specified in these Conditions. Should the Buyer before engaging in a transaction with the Company wish to obtain higher limits of liability or varied warranty terms, the Company should be approached for an alternative quotation as it may be prepared to consider this in return for an addition to the price.
12.2 The sole and exclusive remedy of Buyer for any limited warranty claim is limited to the Company’s replacement or repair (or correction/re-performance in the case of Services), at the Company’s option, of the Goods or Services at issue. The Company’s limited warranty does not extend to or cover defects caused by abnormal use, misuse, neglect or accident or other matters which are excluded or restricted by these Conditions (including without limitation Sections 9 and 10).
12.3 All limited warranty claims must be made in writing within 30 days of the Buyer discovering any alleged defect in Goods or Services or within 30 days of when the Buyer is notified to by any third party of such an alleged defect (provided in each case it was discovered within the twelve month warranty period in Section 9.1) and the Buyer must ensure that the Company is afforded a reasonable opportunity to inspect the allegedly defective Goods or Services. All limited warranty claims shall be delivered to the Company at its principal office at 40 Stark Street, Manchester, NH 03102, with a copy to its registered office at The Corporation Trust Company, 1209 Orange Street, Wilmington, New Castle, Delaware 19801. Any claim that does not comply with these requirements shall be deemed unconditionally waived.
12.4 The Company’s limited warranty in Section 9.1 is the sole and exclusive remedy of Buyer with respect to defects in, or non-conformance of the Goods or Services or any aspect of them.
12.5 The Company shall have no liability in tort or for misrepresentation arising from or related to any aspect of the transactions and proposed transactions between the Company and the Buyer or Company’s performance with respect thereto or from events or statements of the Company not expressly included or incorporated into these Conditions.
12.6 In no event shall any claim of any type or description by the Buyer (or its successors or assigns) related to the Goods or Services, the circumstances or statements related to their sale or supply or other actions or omissions of Company related to the foregoing be made after the second year anniversary of the date of the invoice for such Goods or Services, and after such second year anniversary any and all such claims shall be barred.
12.7 The Buyer shall indemnify the Company against any claim (including any legal or other costs incurred by the Company defending such a claim) made by a third party against the Company in respect of which liability is excluded or limited as between the Company and the Buyer under these Conditions, and arising from or related or connected to: 12.7.1 the Goods, including their packaging and instructions (or any part of them), or Services; or 12.7.2 any other matter.
12.8 To the extent not otherwise excluded or limited under these Conditions, the Company’s liability to the Buyer whether contractual, in tort and/or for any breach of statutory duty or otherwise shall in all events be limited to that proportion of the Buyer’s losses which it would be just and equitable to require the Company to pay having regard to the extent of the Company’s responsibility for the same on the following assumptions, namely that:
12.9.1 all other consultants, contractors, sub-contractors and suppliers in respect of any project for which the Goods and/or Services are purchased have provided contractual undertakings to the Buyer that they have exercised and shall continue to exercise all reasonable skill and care in the performance of their services in connection with the said project and that they have and will supply only goods and materials that comply with their contracts; and 12.10.2 any such other consultants, contractors, sub-contractors and suppliers have paid to the Buyer such proportion of the losses which it would be just and equitable for them to pay having regard to the extent of their responsibility for the Buyer’s losses.
13. FORCE MAJEURE 13.1 The Company shall not be liable for any failure to carry out its obligations arising from circumstances outside the Company’s reasonable control.
13.2 Non-exhaustive illustrations of such circumstances include act of God, war, riot, explosion, abnormal weather conditions, fire, flood, strikes, lock-outs, government action or regulations (US or otherwise), delay by suppliers, accidents and shortages of materials, labour or manufacturing facilities.
13.3 If the circumstances preventing the Company’s performance are still continuing three months after the said circumstances have arisen, then either party may give written notice to the other cancelling the applicable order and neither party shall be under any further liability to the other except that the Buyer shall be liable to pay the contract price less a reasonable allowance for what has not been performed by the Company.
14.SALES DOCUMENTATION AND TECHNICAL DATA 14.1 No information or expression of opinion contained in any catalogues, technical circulars, pricelists and other literature or material published on the Company’s or any other website shall give rise to any liability whatsoever for the Company, whether in contract, tort, misrepresentation or otherwise.
14.2 Unless otherwise expressly agreed in writing by the Company, any samples provided and/or technical details issued by the Company are merely indicative of the type of Goods or Services to be supplied and shall not constitute any representation, warranty or condition as to colour, composition, quality, fitness for any purpose, or compliance with such sample or technical details.
15.PACKAGING AND HANDLING 15.1 Any packaging supplied is intended for delivery to the Buyer and is not intended for onward transportation purposes and the Buyer is responsible for any subsequent movement of the Goods and any necessary packaging in that regard. If the Buyer supplies packaging materials to the Company it shall be solely responsible for the suitability and safety of such packaging and shall be responsible for any loss or damage arising out of the Company’s use of such packaging.
15.2 Goods will, unless otherwise agreed in writing between the Company and the Buyer, be packaged in a manner that the Company deems reasonably suitable for the method of delivery to be adopted. The Buyer will not be entitled to reject Goods on the basis of defective or inadequate packaging.
16.SEVERANCE If any term herein shall be held to be void or unenforceable for any reason whatsoever, but would be valid if part of the wording of such term were deleted then the term shall apply with such modification as shall make it valid and effective while preserving to the maximum extent its intended effect.
17. NOTICES Any notice to be given hereunder shall be in writing and shall be deemed to have been duly given if sent or delivered to the party concerned at its address specified in the Quotation (in the case of the Company) or order (in the case of the Buyer) or such other address as the party may from time to time notify in writing and shall be deemed to have been served, if sent by mail, 48 hours after dispatch. If no address is specified in the Quotation or order, notice may be sent to the address where the persons placing or accepting the order for Goods and/or Services corresponded from.
18.1 Where any Quotation or order confirmation of the Company refers to an external set of standard international commercial conditions such as Incoterms, those external conditions shall be incorporated into these Conditions except to the extent that they may be inconsistent with these Conditions, in which case these Conditions prevail.
18.2 Unless otherwise agreed in writing, where Goods are to be exported from the US, payment shall be in US Dollars. Further, with respect to all export Goods, unless agreed otherwise in writing payment shall be made prior to dispatch of the Goods.
18.3 When payment is made in a currency other than US Dollars, the sum payable shall be increased, in order to maintain the value of the payment when converted to US Dollars, by the percentage of any depreciation of the payment currency against US Dollars (as quoted by the Company’s principal bankers) which has arisen between the date of order acceptance and the date when payment is due (or if later the date when payment is actually made).
18.4 The Company will be responsible for obtaining any necessary export licenses for Goods that are to be exported from the US (or place of manufacture if outside the US). The Buyer will be responsible for obtaining all necessary licenses which it may require to enable it to import and use the Goods and the Buyer shall not be discharged from its obligations hereunder by any total or partial prohibition on import or by the refusal or non-availability of any import license or by the imposition of any conditions or restriction upon the grant of such license.
18.5 In the event of the Buyer failing to obtain the necessary licenses on or before the date of dispatch of the Goods by the Company, the Company shall be entitled (at its option and without prejudice to its other rights) to deal with the Goods as set out in Section 3.5 above.
19.PROPER LAW AND JURISDICTION
19.1 These Conditions shall be governed by New York law and any dispute or action arising out of these Conditions or any order, purchase or proposed purchase of Goods or Services shall be subject to the exclusive jurisdiction of the federal and state courts located in New Hampshire except that the Company may at any time at its option and whether in relation to one or more matters of dispute or actions bring proceedings against the Buyer in any state or territory that the Company chooses having jurisdiction. 19.2 Nothing in these Conditions shall be treated as limiting the right of the Company to proceed to enforce any judgment or order or award in any other jurisdiction as it may in its discretion determine, nor shall the initiating of proceedings or enforcing any judgment or order or award in one or more jurisdictions preclude the Company from initiating proceedings or enforcing any judgment or order in any other jurisdiction whether concurrently or not.
20. WAIVER The rights and remedies of the Company shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time by the Company nor by any failure of or delay by the Company in asserting or exercising any such rights or remedies.