TERMS AND CONDITIONS OF SALE
Any sale by Premier Electronics Ltd. as the seller (hereinafter referred to as “PEL”) is expressly made conditional on the assent of the customer (hereinafter “Buyer”) to these Terms and Conditions of Sale. Buyer’s taking delivery of any part of products/services sold shall constitute such assent and a waiver of all terms and conditions in its purchase order or similar document which are different from or additional to those set forth herein.
1. PRICES AND TERMS OF PAYMENT1.1 Unless otherwise specified by PEL in writing, prices and terms of payment shall be 30 days net of invoice. PEL reserves the right to change or withdraw prices for the products or services it offers for sale without prior notice. If PEL’s price for any product or service is increased, the price in effect prior to the increase will apply to orders received prior to the effective date of the increase and shipped within a period of 30 days after the effective date of increase. Partial shipments or performance made within this period will not obligate PEL to make further shipments or performance at these prices after the expiration of the 30-day period.
1.2 Prices are in Sterling Pounds unless otherwise specified.
1.3 Unless otherwise specified by PEL in writing, all taxes and other charges imposed by federal, state, local, or foreign governments on the manufacture, sale, shipment, import, export, or use of the products or services shall be added to the price and billed to and paid by Buyer. Buyer shall defend, indemnify and hold harmless PEL from and against all liabilities for such taxes or charges and attorneys’ fees or costs incurred by PEL in connection therewith.
2. ACCEPTANCE. – Any quotation or proposal is subject to change or cancellation by PEL at any time with notice and in any event expires 30 days from its date, unless otherwise indicated therein or extended in writing by PEL. PEL’s quotation or proposal does not constitute an offer by PEL, and any order or orders placed thereon are not binding on PEL until PEL’s acceptance in writing has been sent to Buyer. The banking, negotiation, endorsement, or other use of Buyer’s down payment, if any, shall not constitute acceptance by PEL.
3. DELIVERY – PEL shall have the right to make deliveries or perform services in installments. Partial shipments or performance will be billed as made and payments therefor are subject to the terms of payment referenced herein. All delivery indications or completion dates are estimated and are dependent in part upon prompt receipt of all necessary information to service an order. PEL reserves the right to allocate, in its sole discretion, inventories, production, and services when such allocation becomes necessary. In no event will PEL be liable for any premium transportation, re-procurement, or other costs or losses incurred by Buyer as a result of PEL’s failure to deliver products in accordance with indicated delivery/performance schedules.
4. PATENTS AND PATENT WARRANTY4.1 Buyer agrees that PEL has the right to defend, or at its option to settle, and PEL agrees, at its expense, to defend or at its option to settle, any claim, suit, or proceeding brought against Buyer on the issue of infringement of any English patent by any product or any part thereof, supplied by PEL to Buyer hereunder. PEL agrees to pay, subject to the limitations hereinafter set forth, any final judgment entered against Buyer on such issue in any suit or proceeding defended by PEL. Buyer agrees that PEL at its sole option shall be relieved of the foregoing obligations unless Buyer notifies PEL promptly in writing of any such claim, suit, or proceeding, and at PEL’s expense, gives PEL proper and full information and assistance to settle and/or to defend any such claim, suit, or proceeding. If the product, or any part thereof, furnished by PEL to Buyer becomes, or in the opinion of PEL may become, the subject of any claim, suit, or proceeding for infringement of any English patent, or in the event of an adjudication that such product or part infringes any English patent, or if the use, lease, or sale of such product or part is enjoined, PEL may, at its option and its expense: (1) procure for Buyer the right under such patent to use, lease or sell, as appropriate, such product or part, or (2) replace such product or part, or (3) modify such product or part, or (4) remove such product or part and refund the aggregate payments and transportation costs paid therefor by Buyer less a reasonable sum for use, damage, and obsolescence. PEL shall have no liability for any infringement arising from: (i) the combination of such product or part with any other product or part whether or not furnished to Buyer by PEL, or (ii) the modification of such product or part unless such modification was made by PEL, or (iii) the use of such product or part in practicing any process, or (iv) the furnishing to Buyer of any information, data, service, or application assistance. Buyer shall hold PEL harmless against any expense, judgment, or loss for infringement of any English patents or trademarks, which results from PEL’s compliance with Buyer’s designs, specifications, or instructions. PEL shall not be liable for any costs or expense incurred without PEL’s written authorization, and in no event shall PEL’s total liability to Buyer under, or as a result of compliance with, the provisions of this paragraph exceed the aggregate sum paid to PEL by Buyer for the allegedly infringing product or part, exclusive of any refund under option (4) above. The foregoing states the entire warranty by PEL and the exclusive remedy of Buyer, with respect to any alleged patent infringement by such product or part. In the event that Buyer is an authorized distributor of PEL, such warranty, subject to the terms and conditions hereof, shall be extended to the direct purchasers from such distributor of the products covered hereby.
4.2 No sale or lease hereunder shall convey any license by implication, or otherwise, under any proprietary or patent rights of PEL, to practice any process with such product or part, or for the combination of such product or part with any other product or part.
5. OTHER WARRANTIES, LIMITATION OF LIABILITY5.1 PEL warrants that its products, at the time of shipment by PEL, possess the electrical characteristics as set forth in and will perform, for the respective warranty periods specified in the applicable in accordance with the applicable manufactures data sheet when operated within the operating condition limitations set forth therein.
5.2 To assure conformance with such operating limitations, Buyer should refer to the applicable data sheet.
5.3 Such warranty does not apply: (i) if the product has been exposed to unusual or excessive environmental, mechanical, electrical, or thermal stress during the course of installation or use, or (ii) if the absolute maximum ratings are exceeded for any reason including, but not limited to, equipment design and improper device installation or application, or (iii) if product malfunction is the result of misuse, abuse, improper installation or application, alteration, accident, or negligence in use, storage, transportation, or handling, or if the original identification markings on the product have been removed, defaced, or altered.
5.4 In order to permit PEL to properly administer this warranty, Buyer shall (i) notify PEL promptly in writing of any claims, and (ii) provide PEL with the opportunity to inspect and test the product claimed to be defective. Such inspection may be on Buyer’s premises and/or PEL may request the return of the product. However, PEL shall not be responsible for packing, inspection, or labor costs in connection with the return of product. In order to avoid administrative difficulties that result from unauthorized returns, Buyer shall request a formal Return Authorization from PEL before returning product for any reason.
5.5 The liability of PEL hereunder or otherwise is solely and exclusively limited to replacement, repair, or credit at the purchase price, for any product which is returned by Buyer during the applicable warranty period or services for which timely notice of defect has been given by Buyer and which are found by PEL to be subject to adjustment under this warranty. IN NO EVENT SHALL PEL BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOSS OF ANTICIPATED PROFIT OR OTHER ECONOMIC LOSS OR FOR ANY DAMAGES ARISING IN TORT WHETHER BY REASON OF STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE.
5.6 PEL’s warranty as herein set forth shall not be enlarged, diminished, or affected by, and no obligation or liability shall arise or grow out of PEL’s rendering of technical advice, facilities, or services in connection with Buyer’s order or the products furnished hereunder. This does not affect your statutory This does not affect your statutory rights as a consumer
5.7 The foregoing warranty extends to Buyer of PEL and not to purchasers or users of such Buyer’s products, except that if Buyer is an authorized distributor of PEL, the foregoing warranty (and no other), subject to the terms and conditions thereof, may be extended to purchasers from such distributor of the products covered hereby. PEL MAKES NO OTHER OR FURTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY OF MERCHANTABILITY.
6. INSPECTION OF PRODUCTS – Products shall be inspected by Buyer upon delivery and services, upon performance. Notice of rejection or claim for shortages, damaged product, or other nonconformity must be submitted by Buyer to PEL in writing within 30 days of shipment or performance, and must specify the particular respects in which the delivery, products, or services, as applicable, are nonconforming. Buyer shall have no right to exercise any remedial rights until notice of nonconformity has been given to PEL and PEL afforded a reasonable opportunity to cure such nonconformity, if appropriate.
7.CANCELLATION OF ORDERS – Request to cancell an order will be considered but all orders are firm and binding and cannot be cancelled without the full agreement of Premier Electronics.
8. RETURNS-Requests for the return of products because of “ordered in error” or “cancellation” (after shipment has been made) must be made within 30 days of shipment. If approval is given by PEL to return product, a restocking charge will be deducted from the amount of credit issued by PEL. NO UNAUTHORIZED RETURNS WILL BE ACCEPTED. A RETURN AUTHORIZATION NUMBER ISSUED BY PEL MUST ACCOMPANY ALL RETURNS.
9. FORCE MAJEURE – PEL shall not be under any liability whatsoever to Buyer for non-delivery or delay in delivery products/services directly or indirectly caused by unforeseen circumstances or resulting from an Act of God; outbreak of hostilities (whether or not war is declared); insurrection; riot; civil disturbance; Government Act or regulation; fire; flood; explosion; production delays; accident; theft; climatic conditions; shortage of material; strike, lockout, or trade dispute (whether PEL’s or another party’s employees); or other cause beyond PEL’s reasonable control. In the event of any deliveries/services being suspended or delayed on account of any such aforementioned events or circumstances, the period of the contract shall be correspondingly extended or, if deliveries/services are suspended for six months or more, PEL may, at its option, exercisable by notice in writing to Buyer, cancel the contract with respect to any undelivered products/services without liability upon PEL and without relieving Buyer of its obligation to pay for any products/services which have been delivered.
10. RETENTION OF INTEREST IN PRODUCTS – Title to and property in the Goods shall remain vested in the Premier Electronics Ltd (notwithstanding their delivery and the passing of the risk therein to the Buyer) until the price of the Goods has been paid, discharged or satisfied in full.
10.1 Until title to and property in the Goods pass to the Buyer:
(a) Premier Electronics Ltd may at any time without prior notice to the Buyer repossess and resell such of the Goods as are capable of being repossessed if any of the events specified in Condition 11 occurs or if any sum due from the Buyer to the Company whether under the Contract or otherwise is not paid on the due date of payment. For the purpose of exercising its rights under this sub-paragraph the Company, its employees or agents, together with any vehicles and plant considered by the Company to be necessary, shall be entitled at any time without prior notice to the Buyer to safe and unrestricted access to the Buyer’s premises and/or any other locations where any of the Goods are situated; (b) the Buyer shall store such of the Goods as are capable of being stored in a proper manner and conditions which adequately protect and preserve them without charge to the Company and ensure that they are clearly identified as belonging to the Company. Without prejudice to sub-paragraph 10.2(a) above the Company shall be entitled to examine the Goods in storage at any time during normal business hours and upon giving the Buyer reasonable notice of its intention to do so and to enter upon any premises owned or occupied by or access to which is controlled by the Buyer for that purpose; and (c) shall not resell the Goods.
10.2 The rights and remedies conferred on the Company by this Condition 10 are in addition to and shall not in any way prejudice, limit or restrict any other rights or remedies of the Company under the Contract.
11. BUYER’S SOLVENCY – Buyer’s order shall constitute a representation that Buyer is solvent, and PEL is relying upon such representation. If PEL at any time reasonably believes that Buyer is insolvent or that Buyer’s credit is impaired, Buyer shall be in material breach hereof and PEL may, without liability to Buyer, withhold performance hereunder, change the payment terms including without limitation declaring all amounts to be immediately due and payable, and/or repossess products previously delivered.
12. PEL’S DAMAGES – If Buyer wrongfully rejects or revokes acceptance of products/services covered hereby, or fails to make any payment when due, or repudiates this order, PEL shall have all the rights and remedies provided by law and, without limitation of the foregoing, may recover as damages, where permitted by applicable law, the price including a late payment or interest charge from due date at one and one-half percent (1-1/2%) per month on the unpaid balance, but not to exceed the maximum rate of interest permitted by law, and any costs of collection, including reasonable attorneys’ fees. As to all partially manufactured products, PEL may, at its option, complete their manufacture and hold Buyer responsible for their price. Upon recovery of the price, the products shall become the property of Buyer.
13.1 No addition to, deletion from, or modification of any of the provisions of these Terms and Conditions of Sale shall be binding upon PEL, unless made in writing and signed by a duly authorized officer or employee of PEL. Oral statements, warranties, or representations made by any agent or employee or representative of PEL are not authorized by PEL and shall be of no force or effect. These Terms and Conditions of Sale are the final, complete, and exclusive statement of the terms of the agreement between PEL and Buyer. ANY DIFFERENT OR ADDITIONAL TERMS PROPOSED BY BUYER ARE OBJECTED TO AND HEREBY REJECTED.
13.2 A waiver by PEL of any default by Buyer or of any of these Terms and Conditions of Sale shall not be deemed to be a continuing waiver or a waiver of any other default or of any other of these Terms and Conditions of Sale, but shall apply solely to the instance in which the waiver is directed.
13.3 Buyer may not assign this agreement without PEL’s written consent.
13.4 These Terms and Conditions of Sale shall be construed in accordance with the laws of England in the County Court of Hitchin, Hertfordshire. Any claims arising hereunder by either party shall be brought in an appropriate court of general jurisdiction in the County Court of Hitchin, and Buyer irrevocably accepts the jurisdiction of such courts.
14. TRANSPORTATION FOR INTERNATIONAL ORDERS
14.1 The terms “F.O.B.,” “F.A.S.,” “C.I.F.” and/or “C&F,” as used herein or on the reverse side hereof or any attachment hereto, shall be defined in accordance with “Incoterms” published by the International Chamber of Commerce.
14.2 All sales are made F.O.B. the applicable PEL plant or warehouse. Transportation from this point and consular and brokers’ fees shall be at Buyer’s expense. Title to and risk of loss of the products included in each shipment will pass to Buyer upon delivery to the carrier at the plant.
14.3 All shipments normally will be made via the most economical method and routing consistent with service requirements as selected by PEL.
14.4 In the event PEL pays transportation and insurance beyond the point of shipment to the destination specified by Buyer, all such costs will be billed as a separate item on the invoice.
15. PAYMENT TERMS FOR INTERNATIONAL ORDERS – Payment for the products/services specified by Buyer’s order shall be made in U.S. Dollars, through the medium of an T/T, Access, Visa, MasterCard, irrevocable Letter of Credit in favor of Premier Electronics Ltd.
Other payment terms may be negotiated between PEL and Buyer, in which case such special payment terms shall be specified in writing and become a part of the sale agreement.
16. ENGLISH EXPORT LAWS
16.1 PEL’s obligations are subject to the export administration and control laws and regulations of England. Buyer shall comply fully with such laws and regulations in the export, resale, or disposition of products.
16.2 Quotations or proposals made, and any orders accepted by PEL from a Buyer outside the English are with the understanding that the ultimate destination of the products is the country indicated therein. Diversion of the products to any other destination contrary to English law is prohibited. Accordingly, if the foregoing understanding is incorrect, or if Buyer intends to divert the products to any other destination, Buyer shall immediately inform PEL of the correct ultimate destination.