1. Definitions
1.1 "Buyer" means the person, firm or company placing an order with the Company;
1.2 "the Company" means Anders Electronics plc or its subsidiary or associated companies;
1.3 "Products" means all equipment, materials and services which are subject of the Buyer's order or which are to be supplied to the Buyer by the Company under these Conditions of Sale;
1.4 "Contract" means the contract for the supply of the Products formed by the Company's acceptance of the Buyer's order;
1.5 "Carrier" means any person, firm or company engaged by the Buyer or the Company under a contract for the carriage of the Products.
2. Formation of Contract
2.1 There shall be no Contract until the Company accepts the Buyer's order by an Acknowledgement of Order form or by pro-forma invoice.
2.2 The prices, specifications, delivery times or any other information concerning the Products contained in any quotation given by the Company to the Buyer are commercial estimates only and are not binding on the
Company and may be modified by the Company at any time without notice to the Buyer.
2.3 All orders are accepted subject to these Conditions. No terms or conditions put forward by the Buyer or contained in any order form shall be binding on the Company.
2.4 The Buyer acknowledges that these Conditions and any specific details stated on the face of the Company's Acknowledgement of Order form or by pro-forma invoice (and any additions or amendments thereto agreed in
writing by the Company) constitute the entire subject matter of the Contract and that there are no other representations, warranties, conditions, terms or obligations, whether written or oral, express or implied, by custom or otherwise. It is the responsibility of the Buyer to ensure that all such specific details are correct and accurate and discrepancies must be notified to the Company immediately upon receipt.
3. Prices
3.1 Unless the Company shall otherwise expressly agree in writing the price for the Products shall be the price in effect at the time of shipment of the Products.
3.2 In the event that the Company expressly agrees in writing that clause 3.1 above shall not apply and that there shall be a firm price for the Products then (in addition to any other matter agreed in writing between the
Company and the Buyer relating to the price for the Products):
3.2.1 if the Buyer fails to provide the Company within 3 working days after receipt of the Company's Acknowledgement of Order form, pro-forma invoice or specific request with sufficient information and documentation (as the Company shall determine necessary) to enable the Company to proceed with the Contract forthwith; or
3.2.2 if work under the Contract is suspended or delayed due to the fault or neglect (including failure to make payment for the Products in accordance with clause 4 below) of the Buyer, its servants, agents or contractors or any other cause beyond the reasonable control of the Company the Company shall be entitled to increase such firm price to cover any increased cost to the Company caused by any such failure, suspension or delay.
3.3 Prices are exclusive of all VAT, taxes, duties and delivery charges which shall be solely for the Buyer's account.
4. Payment
4.1 Unless the Company shall allow the Buyer credit payment terms as an approved account in accordance with clause 4.2 below, payment of the price for the Products, and in any event any tooling charge referred to in clause
6 below, shall be made in full by the Buyer to the Company in pounds sterling within 3 working days of receipt of the Company's Acknowledgement of Order form or pro-forma invoice accepting the Buyer's order, and the
Company's obligations under the Contract are wholly conditional upon such payment being made. All such payments may at the Company's option be appropriated to the Contract or any other contract between the
Company and the Buyer then due for payment.
4.2 The Company may in its sole discretion (and subject to receipt of such satisfactory references as the Company may require) designate the Buyer as an approved account and, in any such case, unless the Company shall
otherwise direct, payment of the price for the Products shall be made in full by the Buyer to the Company in pounds sterling by no later than 30 days Nett from date of invoice or delivery of the Products to the Buyer whichever is earlier or, in the event that the Buyer's shipping instructions are not received as required by the Company or shipment is held on the Buyer's request, of notification by the Company that the Products are ready
for delivery. The Company expressly reserves the right in its sole discretion to refuse to designate the Buyer as an approved account, to withdraw such designation at any time without notice and to require payment in
accordance with clause 4.1 above notwithstanding such designation including, with respect to future deliveries of the Products, where delivery is by instalment.
4.3 Notwithstanding clauses 4.1 and 4.2 above, the Company may in its discretion agree to amortise the amount of any tooling charge as referred to in clause 6 over a stated quantity of the Products, within a stated period,
save that the full amount outstanding of the total tooling charge (notwithstanding such amortisation) shall become immediately due and payable in the event that the Buyer fails to purchase for any reason whatsoever the said stated quantity of the Products within the said stated period.
4.4 Without prejudice to the Company's other rights in the event that any payment from the Buyer is overdue, the Company reserves the right to disallow any discount otherwise available to the Buyer thereon and to charge
interest on any overdue payment to be added to the amount outstanding at an annual rate of two per cent (2%) above base lending rate of Barclays Bank PLC from time to time accruing on a day to day basis, until the
Company has received payment in full.
4.5 The Buyer shall neither withhold payment of any amount due under the Contract in respect of any disputed claim for damage to the Products or any other alleged breach of contract by the Company, nor shall it be entitled to
exercise a right of set-off.
4.6 The Company may cancel the contract if the Buyer shall suffer any distress or execution to be levied on its goods or if it makes any arrangement with its creditors or enters into voluntary or compulsory liquidation, or has
a receiver, manager or administrator appointed over any of its property or assets, or if the Buyer, being an individual, shall commit an act of bankruptcy or have a receiving order made against him.
4.7 If any payment from the Buyer to the Company under the contract is overdue, the Company may suspend further deliveries under the Contract or any other contract with the Buyer and if such payment shall remain in
arrears for more than 14 days the Company may cancel this Contract or any other contract with the Buyer in whole or in part without prejudice to its other rights and without incurring any liability to the Buyer.
5. Design and Specifications
5.1 All drawings, photographs, illustrations, performance data, dimensions, weights and other technical information, specifications and particulars of the Products are published and supplied by the Company in the belief that they
are as accurate as reasonably possible but are not to be treated as binding or as forming part of the Contract. It is the responsibility of the Buyer to ensure the accuracy of all such materials and information and the Company accepts no liability in this respect. All such material and information is copyright and may not be disclosed to third parties without the Company's consent in writing.
5.2 Where any order accepted by the Company is subject to the approval by the Buyer of drawings, prototypes or any other condition, such approval shall not be unreasonably withheld or delayed.
6. Orders to Customer's Specifications
In any case where the Products are to be manufactured to the Buyer's specifications, the following provisions shall apply notwithstanding any conflicting provisions contained in these Conditions:
6.1 The Company may charge to the Buyer a tooling charge in respect of the costs incurred by the Company in any necessary preparatory or pre-production work (including, without limitation, design, masking, jigging and tooling) incidental to the manufacture of the Products in accordance with the Buyer's specifications. Such tooling charges shall be separately shown on the Company's Acknowledgement of Order Form or pro-forma invoice and payment of such tooling charge shall be made in advance in accordance with the provisions of clause 4.
6.2 Notwithstanding the payment by the Buyer of the tooling charge referred to in Clause 6.1 above, all such preparatory or pre-production work and materials (including, without limitation, all masking, jigging, tooling, prototypes and the copyright and other intellectual property rights in all drawings, designs and specifications) shall be and remain the absolute property of the Company and the Buyer acknowledges that it has no right, title or interest therein.
6.3 Where any matter relating to the Products is not in the opinion of the Company sufficiently specified in the Buyer's specifications, the Company may, at its option, either produce counterdrawings, a model or prototype
of the Products for submission to the Buyer, and the Buyer shall immediately upon receipt thereof notify the Company of any reasonable amendments or additions that may be required (subject to the agreement of a director of the Company), or the Products shall be produced in accordance with the Company's standard specifications and practices. In the event that any modification to such counterdrawings, model or prototype is required (and so agreed by the Company), the Company reserves the right to revise any estimated delivery date for the Products and the price of the Products accordingly.
7. Delivery
7.1 All delivery times are best estimates only and, whilst the Company will endeavour to avoid delay, the Company shall under no circumstances whatsoever be liable to the Buyer for any loss or damage whether direct, indirect or consequential, arising from delay in the performance of the Contract. In the event of any delay attributable to the failure of the Buyer to provide information to the Company, to approve drawings or prototypes submitted by the Company or to take any other action reasonably required, the delivery time shall be extended accordingly.
7.2 If the Company is unable to perform the whole or part of the Contract due to any cause or event beyond its reasonable control including (without limitation) acts of God, acts of government, industrial action, severe
weather and default of suppliers or any other such cause or event whatsoever the Company may at its option by notice in writing to the Buyer cancel or suspend the Contract in whole or in part without liability and without prejudice to the Company's rights to receive payment of the price of all Products previously delivered or work already done.
7.3 If the Company's performance of the Contract is delayed for a period in excess of twice the period estimated by the Company for delivery of the Products or ninety (90) days (whichever is less) due to any cause or event within the Company's reasonable control the Buyer may cancel the Contract in whole or in part by giving not less than ten (10) days notice in writing to the Company and the Company thereafter fails to deliver within such period.
7.4 The Company may deliver by instalments. Each instalment will be considered a separate independent transaction and payment will be made by the Buyer accordingly. Failure by the Buyer to accept or pay for any
instalment may be treated by the Company as a repudiation of the Contract.
7.5 Unless the Company shall otherwise expressly agree in writing, delivery of the Products by the Company to the Carrier shall constitute delivery of the Products by the Company to the Buyer or, if Buyer's shipping instructions
are not received as required, or shipment is held on Buyer's request, delivery of the Products will be constituted by packing and placement of the Products in the Company's storage area or as the Company may determine.
The Products shall be at the Buyer's risk immediately on delivery, and the Buyer shall insure comprehensively the Products against the usual risks accordingly. The Company shall not be liable in any way whatsoever for
any delay, breakage or damage to or loss of the Products after the Company has made delivery to the Carrier.
8. Reservation of Title
8.1 The Company shall retain title to the Products until it has received payment in full of all sums due in connection with the supply of the Products to the Buyer or in connection with any other transaction. For these purposes the Company has only received a payment when the amount of that payment is irrevocably credited to its bank account.
8.2 If any item of the Products owned by the Company is attached to, mixed with, or incorporated into other goods not owned by the Company and is not identifiable or separable from the resulting composite or mixed goods, title to the resulting composite or mixed goods shall vest in the Company and shall be retained by the Company for as long as and on the same terms as those on which it would have retained title to the Products in question.
8.3 The Buyer shall store the Products owned by the Company in such a way that they are clearly identifiable as the Company's property, shall maintain records of such Products identifying them as the Company's property,
of the persons to whom it sells or disposes of such Products and of the payments made by such persons for such Products. It will allow the Company to inspect these records and the Products themselves on request. All
Products supplied by the Company in the Buyer's possession shall be presumed to belong to the Company (unless the Buyer can prove otherwise).
8.4 The Company shall be entitled to trace the proceeds of sale and any insurance proceeds received in respect of the Products owned by the Company. Such proceeds shall be paid into a separate bank account and shall be held by the Buyer on trust for the Company.
8.5 If the Buyer fails to make any payment to the Company when due, enters into bankruptcy, liquidation or a composition with its creditors, has a receiver, manager or administrator appointed over all or part of its assets,
or becomes insolvent, or if the Company has reasonable cause to believe that any of these events is likely to occur, the Company shall have the right, without prejudice to any other remedies;
8.5.1 to enter without prior notice any premises where the Products owned by it may be, and to repossess and dispose of any such Products owned by it so as to discharge any sums owed to it by the Buyer;
8.5.2 to require the Buyer not to resell or part with possession of the Products owned by it until the Buyer has paid in full all sums owed by it to the Company;
8.5.3 to withhold delivery of any undelivered Products and stop any Products in transit.
Unless the Company expressly elects otherwise any contract between it and the Buyer for the supply of the Products shall remain in existence notwithstanding any exercise by the Company of its rights under this clause.
8.6 The Products shall, once the risk has passed to the Buyer in accordance with clause 7.5 or otherwise, be and remain at the Buyer's risk at all times unless and until the Company has retaken possession of such Products.
8.7 In addition to any right of lien to which the Company may by law be entitled, the Company shall upon the occurrence of any of the events described in clause 8.5 above be entitled to a general lien on all the goods of
the Buyer in the Company's possession (although such goods or some of them may have been paid for) for the unpaid price of the Products or any other goods sold and delivered to the Buyer by the Company under this
Contract or any other contract between the Company and the Buyer.
9. Warranty
9.1 The Company warrants to the Buyer that the Products will be free from defects in material and workmanship for a period of twelve months from the date of delivery to the Buyer (the "Warranty Period"). Provided the Buyer
makes a full inspection of the Products immediately upon receipt and thereafter gives the Company written notice containing full particulars of any defects it discovers and the circumstances in which such defects occurred, the Company shall, at its sole option, EITHER repair, replace OR give a credit for the price of any such Products which its examination confirms are defective in material or in workmanship within the Warranty Period
provided that the Buyer has adhered to the payment provisions contained in clause 4 hereof and FURTHER PROVIDED that:
a) the Buyer returns the defective Products to the Company or its authorised service depot (as directed by the Company) and pays all transportation charges, duties and taxes associated with the repair, replacement and return of the Products to the Buyer; OR
b) if, at the Company's option, the Company arranges for a technician to visit the Buyer's installation to repair or replace the defective Products, the Buyer pays all transportation charges for the technician and his equipment, including any applicable duties and taxes, accommodation and living expenses and normal charges for the technician's time while travelling and for delays beyond the Company's control (save that the Buyer shall not be liable for any charge in respect of the technician's time on site actually engaged in carrying out the repair or replacement of such defective Products).
9.2 The repair or replacement of defective Products during the Warranty Period in accordance with clause 9.1 shall not as regards such Products extend the period of warranty therein provided.
9.3 The provisions of clause 9.1 do not extend to any Products which have been subjected to misuse, accident or improper installation, maintenance, application or operation nor do they extend to Products which have been
repaired or altered otherwise than by the agents or employees of the Company unless previously authorised in writing by the Company.
9.4 THE WARRANTY CONTAINED IN THIS CLAUSE 9 IS EXPRESSLY ACCEPTED BY THE BUYER IN LIEU OF ANY AND ALL OTHER TERMS, WARRANTIES, CONDITIONS OR LIABILITIES WHETHER EXPRESSED OR IMPLIED, IN FACT OR IN LAW, RELATING TO THE STATE, QUALITY, DESCRIPTION, CAPACITY, DESIGN, CONSTRUCTION, OPERATION, USE OR PERFORMANCE OF THE PRODUCTS OR TO THE MERCHANTABILITY, REPAIR OR FITNESS FOR A PARTICULAR PURPOSE OF THE PRODUCTS OR OTHERWISE WHATSOEVER AND NO AGREEMENT VARYING OR EXTENDING THE SAME WILL BE BINDING UPON THE COMPANY UNLESS IN
WRITING SIGNED BY A DIRECTOR OF THE COMPANY.
9.5 UNLESS A DIRECTOR OF THE COMPANY SHALL OTHERWISE EXPRESSLY AGREE IN WRITING, IN NO CIRCUMSTANCES SHALL THE COMPANY'S LIABILITY TO THE BUYER FOR ANY BREACH OF THE WARRANTY CONTAINED IN THIS CLAUSE 9 EXCEED THE PRICE PAID FOR THE PRODUCTS WITH RESPECT TO WHICH ANY CLAIM IS MADE.
10. Limitation of Liability
SAVE AS EXPRESSLY PROVIDED IN CLAUSE 9 ABOVE THE COMPANY SHALL HAVE NO LIABILITY WHATSOEVER TO THE BUYER WHETHER IN CONTRACT, TORT OR OTHERWISE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS OR DAMAGE OF ANY KIND SUFFERED OR INCURRED BY THE BUYER HOWSOEVER CAUSED OR ARISING, WHETHER FROM BREACH OR NON-PERFORMANCE OF ANY OF ITS OBLIGATIONS UNDER THE ONTRACT OR FROM THE SUPPLY, INSTALLATION, PERFORMANCE, OPERATIONS OR USE OF THE PRODUCTS, EXCEPT LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM THE COMPANY'S PROVEN NEGLIGENCE.
11. Infringement
11.1 The Buyer warrants that any design or instruction furnished or given by it shall not be such as will cause the Company to infringe any letters patent, copyright, registered design or trademark in the performance of the Contract, and the Buyer undertakes to indemnify the Company against all damages, penalties, costs and expenses to which the Company may become liable as a result of work done in accordance with the Buyer's designs or
instructions which involves the infringement of any letters patent, copyright, registered design or trademark.
11.2 The Company makes no warranty or representation whatsoever that the Products do not infringe any letters patent, copyright, registered design or trademark and accepts no liability in this respect.
12. Assignment
The Contract shall not be assigned in whole or in part by either party without the written consent of the other party, except that the Company may assign its rights, liabilities and obligations to an associated company without prior written notice.
13. Taxes
The Buyer shall promptly pay when due all taxes, duties and other charges upon the export, import, sale, purchase, ownership, possession or use of the Products. Any such taxes, duties or other charges paid by the Company shall be for the account of the Buyer and shall be set out in the Company's nvoice.
14. Waiver
The Company's failure to insist upon the strict performance of any of the Buyer's obligations under the Contract shall not be construed as a waiver and shall not affect the Company's right to require strict performance of such obligation.
15. Costs of Enforcement
The Buyer shall pay to the Company all expenses, including legal costs on a full indemnity basis, incurred by or on behalf of the Company in enforcing the provisions of this Contract.
16. Amendments or variations
No amendments to or variation of any of these Conditions is effective unless it is in writing and signed by a duly authorised director of the Company.
17. Headings
Headings to the Clauses in these Conditions of Sale are for ease of reference only and shall not affect the construction of these Conditions.
18. Severability
If any provision of these Conditions or part thereof is found to be invalid or unenforceable, the invalidity or unenforceability of such provision or part shall not affect any other provision or the remainder of the provision
in which such invalid or unenforceable part is contained, which shall remain in full force and effect.
19. Notices
All correspondence for the Company shall be addressed to:
Anders Electronics plc, 48-56 Bayham Place, London NW1 0EU, United Kingdom.
20. Governing Law and Jurisdiction
The Contract shall be governed by and construed in accordance with the laws of England and the Buyer agrees to submit to the non-exclusive jurisdiction of the English court.
SCOS / 05 / 9208
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