In these conditions the following expressions shall have the following meanings:
(a) "the Seller" shall mean iKoustic Limited. and also where the context so permits any sub-contractor or end user of, or to, the said company.
(b)"Goods" shall where the context so permits include raw materials, processed materials or fabricated products, whether of the manufacture of the Seller or not.
(c)"the Buyer" shall mean the person, firm or company with whom any contract to sell goods is made by the Seller whether directly or indirectly through an agent or factor who is acting for or instructed by any such person , firm or company or whose actions are subsequently to the contract ratified by the actual Buyer.
These conditions shall be deemed to be incorporated in all contracts of the Seller to sell Goods and in the case of any inconsistency with any letter or quotation incorporating or referring to these conditions of any order, letter or form of contract sent by the Buyer to the Seller or any other communication between the Buyer and the Seller, whatever may be their respective dates the provisions of these conditions shall prevail unless expressly varied in writing and signed on behalf of the Seller.
Any concession made or latitude allowed by the Seller to the Buyer shall not affect the strict rights of the Seller under contract. In any particular case, if any of these conditions shall be held to be invalid or shall not apply to the contract, the other conditions shall continue in full force and effect.
Notwithstanding the Seller may have given a detailed quotation, no order shall be binding on the Seller unless and until it has been acknowledged in writing by the Seller.
(a) We will accept returns on non customised products providing the customer returns them to us in a re saleable condition. The customer is responsible for insuring the products return to us. We will then refund the amount paid excluding any original delivery costs and less a 25 % re stocking and handling fee. Customers MUST provide a copy of their invoice from their original sale.
(a) The price payable for the Goods shall unless otherwise stated by the Seller in writing and signed on its behalf be the list price of the Seller current at the date of delivery of the Goods and in the case of an order for delivery in installments, the price payable for each instalment shall be the selling price of the Seller current at the date of delivery of such instalment. Unless otherwise expressly stated to be firm for a period, the Seller's prices are subject to variation to take account of the variations in wages, materials or other costs since the date of the order. The Seller accordingly reserves the right to adjust the invoice price by the amount of any increase or decrease in such costs after the price is quoted and the invoice price so adjusted shall be payable as if it were the original contract price.
(b) The Seller reserves the right to deliver Goods within plus or minus ten percent of the quantities stipulated in the contract and the contract price shall be adjusted accordingly.
The Buyer agrees to pay for any loss or extra cost incurred by the Seller through the Buyer's instructions or lack of instructions, through failure or delay in taking delivery or through any act or default on the part of the Buyer, its servants, agents or employees.
The Buyer shall indemnify the Seller against all costs, claims and damages incurred or threatened arising out of any alleged infringement of patents, trademarks or copyright occasioned by the manufacture or sales of the goods made to the specification or special requirements of the Buyer.
(a) Payment shall be in accordance with the standard terms of payment of the Seller in the United Kingdom, applicable from time to time and will, unless otherwise stated, be due with placement of order for Goods.
(b) If the Goods are delivered in installments, the Seller shall be entitled to payment when each instalment is despatched unless otherwise stated.
(c) If upon the terms agreed for any order the price shall be payable in installments or if the Buyer has agreed to take specified quantities of the Goods at specified times, any default by the Buyer of the payment of any due instalment shall cause the cancellation of the balance of any order and amounts due shall be payable forthwith.
(d) The price of the Goods shall be due in full according to the terms of the order and the Buyer shall not be entitled to exercise any set off lien or any other similar right or claim.
(e) A purchaser will not be entitled to withhold payments of any amount in respect of any disputed claim or charge. Interest may be charged to the purchaser at 3% per month in cases of late payment.
(f) Should payment be overdue from any previous deliveries, the Seller is entitled to withhold further deliveries called for on existing orders or schedules until such payment has been received by the Seller without it affecting the validity of the original order.
(a) The period for delivery shall be the period within which the Goods are intended to be delivered at the Buyers chosen address and shall be calculated from the time of receipt by the Seller of the order, or from receipt of all necessary information accepted by the Seller to supply or procure the manufacture of the Goods whichever shall be the later and the Buyer shall take delivery of the Goods within that period.
(b) All times or dates given for delivery of the Goods are given in good faith but without any responsibility on the part of the Seller. Time shall not be of the essence of any contract nor shall the Seller be under any liability for delay in delivery, whether occasioned by the negligence of the Seller, or any other circumstances whatsoever whether or not beyond the Seller's reasonable control, unless otherwise expressly agreed in writing at or before the date of the order, in which case the Seller's liability shall be limited to such liquidated damage as may be specifically agreed in writing at or before that date.
(c) Where the Goods are handed to a carrier contracted by the Seller for delivery to the Buyer, any such carrier shall be deemed to be the agent of the Seller and not of the Buyer for all purposes.
(d) Where Goods are sold and delivered to a port of departure, the responsibility of the Seller shall cease immediately the Goods have been delivered and signed for and the Seller shall be under no obligation to give the Buyer any notice that may be specified in the current Sale of Goods Act.
(e) No liability for non-delivery, partial loss or damage to the Goods occurring prior to delivery or for any claim that the Goods are not in accordance with the contract will attach to the Seller unless claims to that effect are notified in writing by the Buyer to the Seller (and in the case for claims for non-delivery, partial loss or damage with a copy to the carrier if the Seller's own vehicles have not been used to deliver the Goods).
(i) Within three days of delivery for partial loss, damage or non-compliance with the contract or
(ii) Within ten days of the date of the invoice for non-delivery
(f) In the event of a valid claim for non-delivery, partial loss, damage or non-compliance with the contract, the Seller undertakes at its option either to reprocess or replace the Goods at its expense but shall not be under any further or other liability to any person in connection with such non-delivery, partial loss, damage or non-compliance.
(g) If the Buyer shall fail to give notice in accordance with condition 8(i) above, the Goods shall be deemed to be in all respects in accordance with the contract and the Buyer shall be bound to accept and pay for the same accordingly.
(h) If for any reason the Buyer is unable to accept delivery of the Goods at the time when the Goods are due and ready for delivery, The Seller may at its sole discretion without prejudice to its other rights, store the goods at the risk of the Buyer and take all reasonable steps to safeguard and insure them all at the cost of the Buyer, provided that the Buyer shall be immediately informed thereof.
If the Buyer fails to accept delivery of the Goods at a time when they are due to be delivered, a re-delivery charge will be applicable and charged to the Buyer.
(a) For all orders supplied on account, from the time of delivery, the Goods shall be at the risk of the Buyer who shall be solely responsible for their custody and maintenance as if it were the owner but, unless otherwise expressly agreed in writing, the Goods shall remain the property of the Seller until payment due under the contract between the Seller and the Buyer has been made in full and unconditionally or until resale of the Goods by the Buyer bona fide in the ordinary course of its business and at full market price and the Buyer shall sell as principle only.
While ownership of the Seller continues, the Buyer shall keep the Goods separate and identifiable from all other goods in its possession.
(b) If the Goods shall become converted into or incorporated with other products while still in the ownership of the Seller the ownership in such other products shall vest in the Seller as if solely and simply the Goods until such payment or resale as aforesaid.
(c) In the event of any resale by the Buyer of the Goods or such last mentioned products, the beneficial entitlement of the Seller shall attach to the proceeds of sale or other disposition thereof so that such proceeds or any claim therefore shall be assigned to the Seller and until and subject to such assignment shall be held on trust for the Seller who will stand in a strictly fiduciary capacity in respect thereof.
(d) In the event of failure to pay the price in accordance with the contractual obligations, the Seller shall have the power to resell the Goods or products after reasonable notice, such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise.
(a) Every description or specification of the Goods is given in good faith based on average results of standard tests but any conditions or warranties express or implied that the Goods shall correspond with such description or specification are hereby expressly negative and the use of any such description or specification shall not constitute a sale by description.
(b) Any conditions or warranties (whether express or implied by statute common law or arising from conduct or a previous course of dealing or trade custom or usage) as to the quality or fitness of the Goods for any particular purpose even if that purpose is made known expressly or by implication to the Seller are hereby expressly negative.
(c) Notwithstanding that a sample of the Goods may have been exhibited to and inspected by the Buyer or results of standard tests upon a sample furnished to the Buyer it is hereby declared that such sample was so exhibited and inspected or tested solely to enable the Buyer to judge for itself the quality of the bulk and not so as to constitute a sale by sample. The Buyer shall take the Goods at its own risk as to their corresponding with the sample or as to their quality condition or sufficiency for any purpose.
(d) Without prejudice to the generality of the foregoing sub-clauses (a) (b) and (c) the Seller shall not be liable for any costs, claims, damages or expenses arising out of any breach of contract or statutory duty calculated by reference to profits, income, production or accruals or loss of such profits, income, production or accruals or by reference to accrual of such costs, claims, damages or expenses on a time basis.
(e) The Seller does not guarantee Goods supplied as being suitable for any particular use and therefore, the Buyer must conduct and be responsible for his own tests to assess the suitability for application or use of any Goods supplied by the Seller.
In substitution for all and any other right which the Buyer would or might have had but for these conditions, the Seller undertakes to supply free of charge a replacement of the Goods if of the Seller’s manufacture in which a serious defect in materials or workmanship appears within four weeks of delivery at the place of delivery specified by the Buyer for the original Goods provided that in any case the Goods have been accepted and paid for and are of the Seller’s own manufacture.
In the case of Goods not of the Seller’s manufacture, the Seller will pass on to the Buyer any benefit obtainable under any warranty given by the Seller’s supplier provided that the Goods have been accepted and paid for.
In the case of any claim under this paragraph the Seller reserves the right at its sole discretion of replacing the Goods or crediting to the Buyer in full, the price paid by the Buyer to the Seller.
In order to exercise its rights under this paragraph, the Buyer shall inform the Seller within seven days of the date when such defect appeared or ought reasonably to have been discoverable and shall return the defective Goods carriage paid to the Seller’s works.
Nothing herein shall impose any liability upon the Seller in respect of any defect in the Goods arising out of the acts, omissions, negligence or default of the Buyer, it’s servants or agents including in particular but without prejudice to the generality of the foregoing, any failure by the Buyer to comply with any recommendations of the Seller as to storage and handling of the Goods.
Where the Goods are for delivery by instalments any defect in any instalment shall not be a ground for cancellation of the remainder of the instalments and the Buyer shall be bound to accept delivery thereof.
No statement, description, information, warranty, condition or recommendation contained in any catalogue or web based price list, advertisement or communication or made verbally by any of the agents or employees of the Seller shall be construed to enlarge, vary or override in any way any of these conditions.
The Seller shall be entitled to delay or cancel delivery or to reduce the amount delivered if it is prevented from or hindered in or delayed in manufacturing, obtaining or delivering the Goods by normal route or means of delivery through any circumstances beyond the control, including but not limited to strikes, lockouts, accidents, war, fire reduction in or unavailability of power at manufacturing plant, breakdown of plant or machinery or shortage or unavailability of raw materials from normal source of supply.
Save as provided in clause 13 hereof, contracts or orders may not be cancelled except by agreement in writing of both parties and upon the payment to the Seller of such amount as may be necessary to indemnify the Seller against all loss resulting from the said cancellation. However, the Seller reserves the right to cancel the contract in the event the Buyer’s creditworthiness deteriorates if supplied on account.
The contract shall in all respects be governed by English law and shall have been deemed to have been made in England.
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