Gould Alloys Limited
CONDITIONS OF SALE
1. Interpretation
1.1
In these Conditions:
"BUYER" means the person who accepts a quotation
of the Seller for the sale of the Goods or whose Order for the Goods is accepted
by the Seller;
"GOODS" means the goods (including any instalment
of the goods or any parts for them) which the Seller is to supply in accordance
with these Conditions;
"SELLER" means GOULD ALLOYS LIMITED (a
"CONDITIONS" means the standard terms and
conditions of sale set out in this document;
"CONTRACT" means the contract for the purchase
and sale of the Goods which shall comprise these Conditions; any special terms and
conditions agreed in Writing between the Buyer and the Seller; and the Order;
“ORDER” means an order by the Buyer which
is accepted by the Seller; and
"WRITING" includes telex, cable, e-mail,
facsimile transmission and comparable means of communication.
1.2
Any reference in these Conditions to any provision of a statute
shall be construed as a reference to that provision as amended, re-enacted or extended
at the relevant time.
1.3
The headings in these Conditions are for convenience only and
shall not affect their interpretation.
2. Basis of
2.1
The Seller shall sell and the Buyer shall purchase the Goods in
accordance with any Order of the Buyer which is accepted by the Seller in accordance
with these Conditions. The Contract
shall constitute the entire agreement between the parties to the exclusion of any
other terms and conditions or any other agreement, arrangement or understanding
which is made or purported to be made between the Seller and the Buyer whether written
or oral, relating to its subject matter.
2.2
No variation to these Conditions shall be binding unless agreed
in Writing between the authorised representatives of the Buyer and the Seller.
2.3
The Seller's employees or agents are not authorised to make any
representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer
acknowledges that it does not rely on any such representations which are not so
confirmed.
2.4
Any advice or recommendation given by the Seller or its employees
or agents to the Buyer or its employees or agents as to the storage, application
or use of the Goods which is not confirmed in Writing by the Seller is followed
or acted upon entirely at the Buyer's own risk, and accordingly the Seller shall
not be liable for any such advice or recommendation which is not so confirmed.
2.5
Any typographical, clerical or other error or omission in any
sales literature, quotation, price list, acceptance of offer, invoice or other document
or information issued by the Seller shall be subject to correction without any liability
on the part of the Seller.
2.6
A quotation by the Seller does not constitute an offer and the
Seller reserves the right to withdraw or revise a quotation at any time prior to
the Seller’s acceptance of the Buyer’s Order.
2.7
Each party agrees that it shall have no remedies in respect of
any representation or warranty (whether made innocently or negligently) that is
not set out in the Contract. No party
shall have any claim for innocent or negligent misrepresentation based upon any
statement in the Contract.
3.
3.1
No Order submitted by the Buyer shall be deemed to be accepted
by the Seller unless and until confirmed in Writing by the Seller's authorised representative. If the Contract price exceeds £15,000,
then the Contract must be authorised on behalf of the Seller by any one manager
of the Seller. In the event that a
Contract in which the Contract price exceeds £15,000 is not authorised by a manager
of the Seller, then that Contract shall be voidable at the option of the Seller. Should the Seller exercise this option,
then that Contract shall be void and to no effect and neither party shall have any
claim of any nature whatsoever against the other.
3.2
The Buyer shall be responsible to the Seller for ensuring the
accuracy of the terms of any Order (including any applicable specification) submitted
by the Buyer, and for giving the Seller any necessary information relating to the
Goods within a sufficient time to enable the Seller to perform the Contract in accordance
with its terms.
3.3
Subject to clause 3.7 below, the quantity, quality and description
of and any specification for the Goods shall be those set out in the Buyer's Order
(if accepted in Writing by the Seller in accordance with clause 3.1).
3.4
If the Goods are to be manufactured, designed, built or configured
or any process is to be applied to the Goods by the Seller in accordance with a
specification submitted by the Buyer, the Buyer shall hold the Seller harmless and
shall fully and promptly indemnify the Seller against all loss, damages, costs and
expenses awarded against or incurred by the Seller in connection with or paid or
agreed to be paid by the Seller in settlement of any claim for infringement of any
patent, copyright, design, trade mark or other industrial or intellectual property
rights of any other person which results from the Seller's use of the Buyer's specification.
3.5
The Seller reserves the right to make any changes in the specification
of the Goods which are required to conform with any applicable statutory or EU requirements
or, where the Goods are to be supplied to the Seller's specification, which do not
materially affect their quality or performance.
3.6
No Order which has been accepted by the Seller may be cancelled
by the Buyer except with the agreement in Writing of the Seller and on terms that
the Buyer shall indemnify the Seller in full against all loss (including loss of
profit), costs (including the cost of all labour and materials used), damages, charges
and expenses incurred by the Seller as a result of cancellation.
3.7
The Seller reserves the right to supply Goods which may vary in
weight by up to 10% from the amount stated in the Contract.
Where the Seller under-delivers Goods by an amount not exceeding 10% by weight,
the provisions of Sub-section (1) of Section 30 of the Sale of Goods Act 1979 shall
not apply and the delivery of such lesser amount of Goods shall be deemed to be
delivery under the Contract and shall be paid for by the Buyer at the rate set out
in the Contract. Where the Seller delivers
Goods by an amount no greater than 10% by weight of the amount set out in the Contract,
the provisions of Sub-sections (2) and (3) of Section 30 of the Sale of Goods Act
1979 shall not apply and the delivery of such greater amount shall be deemed to
be delivery under the Contract and paid for by the Buyer at the rate set out in
the Contract. In the event of the Seller
delivering an amount greater than 10% by weight in excess of the quantity set out
in the Contract, the Buyer shall have the option of paying for such excess at the
rate set out in the Contract or at its option, returning such additional Goods to
the Seller (in the same condition as delivered to the Buyer) Provided Always that
such Goods must be returned no later than 14 days from the date of delivery.
3.8
The Seller reserves the right to supply Goods which may vary in
dimension by up to 10% from the amount stated in the Contract.
Where the Seller under-delivers Goods by an amount not exceeding 10% by dimension
the provisions of sub-section (1) of Section 30 of the Sale of Goods Act 1979 shall
not apply and the delivery of such lesser amount of Goods shall be deemed to be
delivery under the Contract and shall be paid for by the Buyer at the rate set out
in the Contract. Where the Seller delivers
goods by an amount no greater than 10% by dimension of the amount set out in the
Contract the provisions of sub-sections (2) and (3) of Section 30 of the Sale of
Goods Act 1979 shall not apply and the delivery of such greater amount shall be
deemed to be delivery under the Contract and paid for by the Buyer at the rate set
out in the Contract. In the event that
the Seller delivering an amount greater than 10% by dimension in excess of the quantity
set out in the Contract, the Buyer shall have the option of paying for such excess
at the rate set out in the Contract or at its option, returning such additional
Goods to the Seller (in the same condition as delivered to the Buyer) Provided Always
that such Goods must be returned no later than 14 days from the date of delivery,
4. Price of the Goods
4.1
The price of the Goods shall be the Seller's quoted price subject
always to the provisions of clause 2.6.
All prices quoted are valid for 7 days only or until earlier acceptance by the Buyer,
after which time they may be altered by the Seller without giving notice to the
Buyer.
4.2
The Seller reserves the right, by giving notice to the Buyer at
any time before delivery, to increase the price of the Goods to reflect any increase
in the cost to the Seller which is due to any factor beyond the control of the Seller
(such as, without limitation, any foreign exchange fluctuation, currency regulation,
alteration of duties, significant increase in the costs of labour, materials or
other costs of manufacture), any change in delivery dates, quantities or specifications
for the Goods which is requested by the Buyer, or any delay caused by any instructions
of the Buyer or failure of the Buyer to give the Seller adequate information or
instructions.
4.3
Except as otherwise stated under the terms of any quotation or
in any price list of the Seller, and unless otherwise agreed in Writing between
the Buyer and the Seller, all prices are given by the Seller on an ex works basis
and where the Seller agrees to deliver the Goods otherwise than at the Seller's
premises, the Buyer shall be liable to pay the Seller's charges for transport, packaging
and insurance.
4.4
The price is exclusive of any applicable value added tax, which
the Buyer shall be additionally liable to pay to the Seller.
4.5
The cost of returnable pallets and containers will be charged
to the Buyer in addition to the price of the Goods, but full credit will be given
to the Buyer provided they are returned undamaged to the Seller before the due payment
date.
5. Terms of Payment
5.1
Subject to any special terms agreed in Writing between the Buyer
and the Seller, the Seller shall be entitled to invoice the Buyer for the price
of the Goods on or at any time after delivery of the Goods unless the Goods are
to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the
Goods, in which event the Seller shall be entitled to invoice the Buyer for the
price at any time after the Seller has notified the Buyer that the Goods are ready
for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2
The Buyer shall pay the price of the Goods (less any discount
to which the Buyer is entitled, but without any other deduction, whether by way
of set-off, counterclaim, abatement or otherwise) within 30 days after the end of
the month in which the Goods are delivered, subject to any special terms agreed
in Writing between the Buyer and Seller and the Seller shall be entitled to recover
the price, notwithstanding that the property in the Goods has not passed to the
Buyer. The time of payment of the price
shall be of the essence of the Contract.
Receipts for payment will be issued only upon request.
5.3
If the Buyer fails to make any payment on the due date then, without
prejudice to any other right or remedy available to the Seller, the Seller shall
be entitled to:
5.3.1
cancel the contract or suspend any further deliveries to the Buyer;
5.3.2
appropriate any payment made by the Buyer to such of the Goods (or the
goods supplied under any other contract between the Buyer and the Seller) as the
Seller may think fit (notwithstanding any purported appropriation by the Buyer);
and
5.3.3
charge the Buyer interest (both before and after any judgment) on the
amount unpaid, at the rate of 4 per cent per annum above National Westminster Bank’s
base lending rate from time to time calculated on a daily basis, until payment in
full is made (a part of a month being treated as a full month for the purpose of
calculating interest). The Seller reserves the right to claim interest under the
Late Payment of Commercial Debts (Interest) Act 1998.
5.4
In the event that the Seller owes money to the Buyer under any
contract or other arrangement entered into between the Seller and the Buyer the
Seller shall be entitled to set off such sums owed by the Seller to the Buyer against
any sums which the Buyer shall owe to the Seller pursuant to this contract.
6. Delivery, Inspection
and Complaints
6.1
Delivery of the Goods shall be made by the Buyer collecting the
Goods at the Seller’s premises at any time after the Seller has notified the Buyer
that the Goods are ready for collection or, if some other place for delivery is
agreed by the Seller, by the Seller delivering the Goods to that place.
6.2
Any dates quoted for delivery of the Goods are approximate only
and subject to 6.4 below, the Seller shall not be liable for any delay in delivery
of the Goods howsoever caused. Time
for delivery shall not be of the essence of the Contract unless previously agreed
by the Seller in writing. The Goods
may be delivered by the Seller in advance of the quoted delivery date upon giving
reasonable notice to the Buyer.
6.3
Where the Goods are to be delivered in instalments, each delivery
shall constitute a separate contract and failure by the Seller to deliver any one
or more of the instalments in accordance with these Conditions or any claim by the
Buyer in respect of any one or more instalments shall not entitle the Buyer to treat
the Contract as a whole as repudiated.
6.4
If the Seller fails to deliver the Goods (or any instalment) for
any reason other than any cause beyond the Seller's reasonable control or the Buyer's
fault, and the Seller is accordingly liable to the Buyer, the Seller's liability
shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest
available market) of similar goods to replace those not delivered over the price
of the Goods Provided Always that the time of delivery
of the Goods shall not be of the essence of this contract and only delays by the
Seller in the delivery of the Goods (or any instalments) which exceed 6 months shall
give the Buyer the right to terminate this contract or purchase similar goods elsewhere.
6.5
If the Buyer fails to take delivery of the Goods at the time stated
for delivery or fails to give the Seller adequate delivery instructions (otherwise
than by reason of any cause beyond the Buyer's reasonable control or by reason of
the Seller's fault) then risk in the Goods shall pass to the Buyer and the Goods
shall be deemed to have been delivered on the date of delivery and without prejudice
to any other right or remedy available to the Seller, the Seller may:
6.5.1
store the Goods until actual delivery and charge the Buyer for the reasonable
costs (including insurance) of storage; or
6.5.2
sell the Goods at the best price readily obtainable and (after deducting
all reasonable storage and selling expenses) account to the Buyer for the excess
over the price under the Contract or charge the Buyer for any shortfall below the
price under the Contract.
6.6 The Buyer shall examine
the Goods upon delivery and satisfy itself that they conform to Contract.
A claim that Goods are not in accordance with the Contract will not be accepted
by the Seller unless notice in writing, specifying the alleged default, is given
to the Seller within 7 days of delivery of the Goods.
6.7 Failure to notify
the Seller of the non-delivery of the Goods, or any of them, within 7 days of the
due date for delivery will release the Seller from liability for claims for non-delivery.
6.8 Any Goods considered
to be damaged or defective (together with their packaging materials) shall be retained
by the Buyer intact as delivered for a period of twenty one days from notification
of the claim to the Seller, within which time the Seller or its agents shall have
the right to investigate the complaint and examine the Goods and, if possible, to
remedy any defect. Any breach of this
condition will release the Seller from any liability for Goods which are alleged
not to conform to Contract.
6.9 If the Seller agrees
with the Buyer that the Goods are damaged or defective and that it is not possible
to remedy any defect then the Seller shall, at its sole option, replace the Goods
or credit the Buyer accordingly.
6.10 If the Seller disagrees
with the Buyer that the Goods are damaged or defective then the dispute shall be
referred to an independent third party appointed jointly by the Seller and the Buyer
or, failing agreement within 7 days, by a party appointed, on the application of
either the Seller or the Buyer, by the President for the time being of Institute
of Chartered Accountants. Such independent third party shall act as an expert and
not as an arbiter and his decision shall be final and binding on, and his costs
and expenses shall be borne equally by, the Seller and the Buyer.
6.11 The Seller shall have no
liability to the Buyer in respect of damaged or defective Goods (and the Buyer shall
be required to pay the full contract price) where:-
(a) any claim made
by the Buyer is not in accordance with these Conditions;
(b) damage has
been sustained after delivery of the Goods to the Buyer, or its agents;
(c) defects are
caused by installation, operation or maintenance carried out other than in accordance
with any instructions supplied orally or in writing with the Goods or by wear and
tear, accident or misuse, improper operation or neglect or if any adjustment, alteration
or other work has been performed on the Goods by any person other than the Seller
or its employees or agents; or
(d) a receipt has
been obtained by the Seller, duly signed by the Buyer or one of its employees or
agents, confirming that the Goods have been delivered in a satisfactory condition.
7. Risk and Property
7.1
Risk of damages to or loss of the Goods shall pass to the Buyer:
7.1.1
in the case of Goods to be delivered at the Seller's premises, at the
time when the Seller notifies the Buyer that the Goods are available for collection;
or
7.1.2
in the case of Goods to be delivered otherwise than at the Seller's premises,
at the time of delivery or, if the Buyer fails to take delivery of the Goods, the
time when the Seller has tendered delivery of the Goods.
7.2
Notwithstanding delivery and the passing of risk in the Goods, or any other provision
of these Conditions, the property in the Goods shall not pass to the Buyer until
the Seller has received in cash or cleared funds, payment in full of the price of
the Goods and all other goods agreed to be sold by the Seller to the Buyer for which
payment is then due.
7.3
Until property
in the Goods passes to the Buyer, the Buyer shall:
7.4
The Buyer may
resell the Goods before ownership has passed to it solely on the following conditions:
7.5
Until such
time as the property in the Goods passes to the Buyer, the Seller shall be entitled
at any time to require the Buyer to deliver up the Goods to the Seller and, if the
Buyer fails to do so forthwith, the Buyer grants the Seller, its agents and employees
an irrevocable licence at any time to enter any premises where the Goods are or
may be stored or otherwise located, but in any event, and without limitation, hereby
undertakes to secure full rights of access at any time to any such premises for
the Seller, its agents and employees to recover the Goods and to undertake any work
required to remove them, notwithstanding that the Goods may be affixed or attached
to any other goods or property.
7.6
The Buyer shall
not be entitled to pledge or in any way charge by way of security for any indebtedness
any of the Goods which remain the property of the Seller, but if the Buyer does
so all moneys owing by the Buyer to the Seller shall (without prejudice to any other
right or remedy of the Seller) forthwith become due and payable.
8. Warranties and Liability
8.1
Subject to the conditions set out below the Seller warrants that
the Goods will correspond with their specification at the time of delivery and will
be free from defects in material and workmanship for a period of 3 months from the
date of delivery.
8.2
The above warranty is given by the Seller subject to the following
conditions:
8.2.1
the Seller shall be under no liability in respect of any defect in the
Goods arising from any drawing, design or specification supplied by the Buyer;
8.2.2
the Seller shall be under no liability in respect of any defect arising
from fair wear and tear, wilful damage, negligence, abnormal working conditions,
failure by the Buyer to follow the Seller's instructions (whether oral or in writing),
misuse or alteration or repair of the Goods without the Seller's written approval;
8.2.3
the Seller shall be under no liability under the above warranty (or any
other warranty, condition or guarantee) if the price due for the Goods has not been
paid;
8.2.4
the above warranty does not extend to parts, materials or equipment not
manufactured by the Seller, in respect of which the Buyer shall only be entitled
to the benefit of any such warranty or guarantee as is given by the manufacturer
to the Seller.
8.3
If the Seller agrees that it is or (as the case may be) it is
found to be liable under the provisions of clause 8.2 above, then the Seller’s entire
liability to the Buyer shall be limited, at the option of the Seller, to repairing
or replacing the Goods or refunding the purchase price (or a proportionate part
thereof) for them.
8.4
Subject as expressly provided in these Conditions and except where
the Goods are sold to a person dealing as a consumer (within the meaning of the
Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied
by statute or common law are excluded to the fullest extent permitted by law. Without
limiting the generality of this clause 8.4, the Buyer shall be responsible for ensuring
that the Goods are fit for the purpose for which it wishes to use them and the Seller
gives no warranty (and none shall be implied) that the Goods are fit for any particular
purpose.
8.5
Where the Goods are sold under a consumer transaction (as defined
by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory
rights of the Buyer are not affected by these Conditions.
8.6
Nothing in these Conditions is intended to exclude or limit the
liability of the Seller to the Buyer for the following matters:-
8.6.1
death or personal injury caused by the Seller’s negligence;
8.6.2
failure to give good title to the Goods; or
8.6.3
fraud or fraudulent misrepresentation.
However, save for these matters and save
for the liability accepted by the Seller under clauses 8.3 and 6.4 and clause 9
below the Seller shall have no liability of any nature whatsoever to the Buyer whether
for breach of contract, any act or omission (including negligence), breach of any
statutory duty, breach of any warranty, condition or other term implied by law,
misrepresentation (unless fraudulent) or in any other manner whatsoever.
Under no circumstances shall the Seller be liable to the Buyer for any loss
of profits, loss of contracts, loss of goodwill, administration and management expenses,
or any consequential or indirect loss or damage of any nature even if any of these
matters were reasonably foreseeable.
8.7 The Seller’s total
liability to the Buyer in respect of all other losses than those expressed to be
excluded in this clause 8 arising under or in connection with the Contract, whether
in contract, tort (including negligence), breach of statutory duty, or otherwise,
including losses caused by the Seller’s deliberate personal repudiatory breach or
a deliberate breach of the Contract by the Supplier, its employees, agents or subcontractors
shall not exceed 100% of the price paid for the Goods in any one calendar year.
8.8
The Seller shall not be liable to the Buyer or be deemed to be
in breach of the Contract by reason of any delay in performing, or any failure to
perform, any of the Seller's obligations in relation to the Goods, if the delay
or failure was due to any cause beyond the Seller's reasonable control.
Without prejudice to the generality of the foregoing, the following shall
be regarded as causes beyond the Seller's reasonable control:
8.8.1
Act of God, explosion, flood, tempest, fire or accident;
8.8.2
war or threat of war, sabotage, insurrection, civil disturbance or requisition;
8.8.3
acts, restrictions, regulations, bye-laws, prohibitions or measures of
any kind on the part of any governmental, parliamentary or local authority;
8.8.4
import or export regulations or embargoes;
8.8.5
strikes, lock-outs or other industrial actions or trade disputes (whether
involving employees of the Seller or of a third party);
8.8.6
difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.8.7
power failure or breakdown in machinery.
8.9
These Conditions do not create any right enforceable by any person
not a party to it except that a person who is the permitted successor to or assignee
of the Seller is deemed to have the benefit of all rights of the Seller.
9. Indemnity
9.1
If any claim is made against the Buyer that the Goods infringe
or that their use or resale infringes the patent, copyright, design, trade mark
or other industrial or intellectual property rights of any other person, then unless
the claim arises from the use of any drawing, design or specification supplied by
the Buyer, the Seller shall indemnify the Buyer against all loss, damages, costs
and expenses awarded against or incurred by the Buyer in connection with the claim,
or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:
9.1.1
the Seller is given full control of any proceedings or negotiations in
connection with any such claim;
9.1.2
the Buyer shall give the Seller all reasonable assistance for the purposes
of any such proceedings or negotiations;
9.1.3
except pursuant to a final award, the Buyer shall not pay or accept any
such claim, or compromise any such proceedings without the consent of the Seller
(which shall not be unreasonably withheld);
9.1.4
the Buyer shall do nothing which would or might vitiate any policy of
insurance or insurance cover which the Buyer may have in relation to such infringement,
and this indemnity shall not apply to the extent that the Buyer recovers any sums
under any such policy or cover (which the Buyer shall use its best endeavours to
do);
9.1.5
the Seller shall be entitled to the benefit of, and the Buyer shall accordingly
account to the Seller for, all damages and costs (if any) awarded in favour of the
Buyer which are payable by, or agreed with the consent of the Buyer (which consent
shall not be unreasonably withheld) to be paid by, any other party in respect of
any such claim; and
9.1.6
without prejudice to any duty of the Buyer at common law, the Seller
shall be entitled to require the Buyer to take such steps as the Seller may reasonably
require to mitigate or reduce any such loss, damages, costs or expenses for which
the Seller is liable to indemnify the Buyer under this clause.
10.
Insolvency of Buyer
10.1
This clause applies if:
10.1.1
the Buyer makes any voluntary arrangement with its creditors or (being an individual
or firm) becomes bankrupt or (being a company) becomes subject to an administration
order or goes into liquidation (otherwise than for the purposes of amalgamation
or reconstruction); or
10.1.2
an encumbrancer takes possession, or a receiver or administrative receiver is appointed,
of any of the property or assets of the Buyer; or
10.1.3
the Buyer ceases, or threatens to cease, to carry on business; or
10.1.4
the Seller reasonably apprehends that any of the events mentioned above is about
to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2
If this clause applies then, without prejudice to any other right
or remedy available to the Seller, the Seller shall be entitled to cancel the Contract
or suspend any further deliveries under the Contract without any liability to the
Buyer, and if the Goods have been delivered but not paid for the price shall become
immediately due and payable notwithstanding any previous agreement or arrangement
to the contrary.
11. Export Terms
11.1
In these Conditions "Incoterms" means the international rules
for the interpretation of trade terms of the International Chamber of Commerce as
in force at the date when the Contract is made.
Unless the context otherwise requires, any term or expression which is defined
in or given a particular meaning by the provisions of Incoterms shall have the same
meaning in these Conditions, but if there is any conflict between the provisions
of Incoterms and these Conditions, the latter shall prevail.
11.2
Where the Goods are supplied for export from the
11.3
The Buyer shall be responsible for complying with any legislation
or regulations governing the importation of the Goods into the country of destination
and for the payment of any duties on them.
11.4
The Buyer is responsible for complying with all UK laws regarding
UK military items exported from the UK regardless of destination.
11.5
The Buyer shall be responsible for arranging for testing and inspection
of the Goods at the Seller's premises before collection.
The Seller shall have no liability for any claim in respect of any defect
in the Goods which would be apparent on inspection and which is made after collection,
or in respect of any damage during transit.
11.6
Payment of all amounts due to the Seller shall be made by irrevocable
letter of credit opened by the Buyer at Buyer's expense in favour of the Seller
and confirmed by a recognised European Bank acceptable to the Seller or, if the
Seller has agreed in Writing on or before acceptance of the Buyer's Order to waive
this requirement, by acceptance by the Buyer and delivery to the Seller of a bill
of exchange drawn on the Buyer payable 60 days after sight to the order of the Seller
at such branch of National Westminster Bank in England as may be specified in the
bill of exchange.
11.7
The Buyer undertakes not to offer the Goods for resale in any
country notified by the Seller to the Buyer at or before the time the Buyer's Order
is placed, or to sell the Goods to any person if the Buyer knows or has reason to
believe that that person intends to resell the Goods in any such country.
12. ANTI-BRIBERY
12.1 The Buyer, (which for the
purposes of this clause 12 shall include all of the Buyer’s employees, agents, representatives,
affiliates and any person employed by or acting on behalf of the Buyer) agrees with
the Seller that it will not, in connection with the Goods to be supplied under this
Contract or in respect of any other agreement or understanding between the Buyer
and the Seller, bribe, or attempt to bribe (which shall include without limitation,
any offer of any form of payment, gift or other form of inducement, reward or advantage
charitable donations, facilitation payments, and/or political contributions (whether
of money or anything of value)) the Seller or any of the Seller’s employees, agents,
representatives, affiliates or persons employed by or acting on behalf of the Seller,
any customers, potential customers, public or government officials or employees,
public international organisations, political parties, or
12.2
The Buyer represents and warrants to the Seller that it has not,
prior to the date of this Contract, bribed or attempted to bribe any Relevant Party
in order to secure and/or retain any business with the Seller whether in connection
with this Contract or otherwise.
12.3
The Buyer acknowledges and agrees that it is familiar with and
will abide by the anti-bribery and anti-money laundering laws in all the countries
in which it is incorporated or established and in which it does business.
12.4
The Buyer agrees that it will not take or knowingly permit any
action to be taken that would cause the Seller to be in violation of any applicable
anti-bribery or anti-money laundering laws.
12.5
The Buyer agrees that its books, records and all accounts shall
accurately reflect any and all payments in respect of transactions of the Buyer
whether under this Contract or otherwise, and the Seller (and the Seller’s authorised
representatives) shall have the right to inspect, audit and to take copies of the
Buyer’s books, records and accounts at any time on prior written notice.
12.6 If the Buyer discovers
that it has or may have violated any of the provisions in this clause 12, the Buyer
shall immediately notify the Seller and cooperate with any investigations by the
Seller into such matters.
12.7
Without prejudice to the generality of clauses 12.1 to 12.6 inclusive,
the Buyer covenants with the Seller to establish and at all times maintain and implement
such anti-bribery policies and procedures as may be required to ensure that it prevents
bribery or attempted bribery taking place on the Buyer’s behalf.
12.8
The Buyer agrees that in addition to the Seller’s termination
rights set out elsewhere in this Contract, the Seller may immediately terminate
this Contract in the event of a breach of this clause 12 by the Buyer.
12.9
The Buyer shall indemnify the Seller against all liabilities,
costs, expenses, damages, claims, demands and losses (including any direct, indirect
or consequential losses, loss of profit, loss of reputation and all interest, penalties
and legal and other professional costs and expenses) suffered or incurred by the
Supplier arising out of or in connection with any breach of this clause 12, whether
or not the Contract has been terminated.
General
12.1
The Seller is a member of a group of companies and accordingly
the Seller may perform any of its obligations or exercise any of its rights hereunder
by itself or through any other member of its group, provided that any act or omission
of any such other member shall be deemed to be the act or omission of the Seller.
12.2
Any notice required or permitted to be given by either party to
the other under these Conditions shall be in Writing addressed to that other party
at its registered office or principal place of business or such other address as
may at the relevant time have been notified pursuant to this provision to the party
giving the notice.
12.3
No waiver by the Seller of any breach of the Contract by the Buyer
shall be considered as a waiver of any subsequent breach of the same or any other
provision.
12.4
If any provision of these Conditions
is held by any competent authority to be invalid or unenforceable in whole or in
part, the validity of the other provisions of these Conditions and the remainder
of the provision in question shall not be affected.
12.5
Neither the Seller nor the Buyer intends that any term of the Contract shall
be enforceable by virtue of the contracts (Rights of Third Parties) Act 1999 by
any person that is not a party to it.
12.6 The
Contract shall be governed by the laws of