Пользовательское соглашение
1. CONDITIONS
1.1 In these conditions:-
'the Buyer' means any customer of the Seller to whom
Products are supplied under these terms and conditions
'the Contract' means
any contract between the Seller and the Buyer for the sale and purchase of the
Products
'Intellectual Property Rights' means any and all rights in patents
copyright moral rights business and trade names design rights know how and all
other intellectual property rights and any applications for any of the foregoing
which may subsist anywhere in the world
'the Products' means all products and
associated documentation to be supplied under this Contract
'the Seller'
means IMI International
'Writing' includes cable, facsimile transmission,
electronic data transfer, e-mail and comparable means of
communication.
1.2 All quotations are
made and all orders are accepted subject to these conditions. All other terms,
conditions or warranties whatsoever are excluded from the Contract or any
variation thereof unless expressly accepted by the Seller in Writing (order
acknowledgements do not constitute such acceptance). In particular, in no
circumstances will any conditions of purchase submitted at any time by the Buyer
be applied to this Contract and any failure by the Seller to challenge any such
conditions of purchase does not imply acceptance.
1.3 In
the event of a conflict between these conditions and the specific terms and
conditions of quotation then the latter shall prevail. Acceptance by the Buyer
of delivery of the Products shall be deemed to constitute unqualified acceptance
of these conditions.
1.4 Unless otherwise
stated therein quotations shall be available for acceptance for a maximum period
of 30 days from issue and may be withdrawn at any time by written or oral
notice.
1.5 If any statement or
representation has been made to the Buyer by the Seller or its officers,
employees or agents (other than in the document(s) enclosed with the Seller's
quotation), upon which the Buyer wishes to rely it shall only be entitled to do
so if that statement or representation is attached to, or endorsed on, the
Buyer's order and then only if the Seller subsequently confirms in writing to
the Buyer that the Buyer is entitled to rely on such statement or
representation.
1.6 The Contract is
between the Seller and the Buyer as principals and neither the benefit nor the
burden is assignable by the Buyer without the Seller's written consent. The
Contract may be assigned, sub-contracted or otherwise disposed of by the
Seller.
1.7 Unless specifically
agreed to the contrary all trade terms shall be interpreted in accordance with
INCOTERMS 2000 of the International Chamber of Commerce or as may be updated or
amended from time to time.
2. ELECTRONIC TRADING
2.1 If the Seller and Buyer agree that electronic trading between them shall be a
basis for trade then the e-centre UK Standard Interchange Agreement (4th Edition
March 1999 as amended or revised from time to time) ('SIA') shall be
incorporated into the Contract by reference. If and to the extent of any
conflict or inconsistency between these conditions and the SIA, these conditions
shall prevail.
2.2 Electronic orders
shall be valid if all the information agreed between the Buyer and the Seller as
being required is properly set out in the agreed format and the order is
transmitted by the Buyer to the Seller by reference to the correct
identification code and is received by the Seller when collecting its electronic
mail from the relevant system.
2.3 Subject to Clause
2.2, each valid electronic order will be deemed accepted by the Seller unless
the Seller communicates rejection of the order to the Buyer by electronic or
other means (including telephone) within two working days of receipt. Acceptance
of an order shall constitute a contract for sale and purchase to which these
conditions and SIA shall apply.
3. PRICES
3.1 Unless otherwise agreed in writing all prices are ex works exclusive of delivery
and VAT. Unless otherwise agreed in Writing prices are payable in Euros. If the
Seller agrees to deliver the Products otherwise than at its premises the Buyer
shall pay all packaging, transportation and insurance costs and other costs
incurred by the Seller in making or arranging such
delivery
3.2 The Seller shall be
entitled at any time on written notice to make a reasonable adjustment to the
price in the event of any alteration in quantity, design or specification
requested by the Buyer.
3.3 The Seller reserves
the right at any time prior to delivery and on written notice to increase the
price if there is any increase in the cost of materials labour transport or
utilities or if the costs of the Seller are increased by any other factor beyond
the reasonable control of the Seller.
3.4 The Buyer shall be
liable to the Seller for any demurrage costs incurred in the event of vehicles
being unduly delayed at the point of delivery.
4. DELIVERY
4.1 Unless otherwise agreed in Writing by the Seller delivery shall be
ex-works.
4.2 All dates and periods
for delivery are estimated and do not constitute fixed times for delivery by the
Seller and time of delivery shall not be of the essence of the Contract nor
shall the Buyer be entitled to make, or to purport to make, time for delivery of
the essence of the Contract.
4.3 The date for delivery
shall in every case be dependant upon prompt receipt of all necessary
information, final instructions or approvals from the
Buyer.
4.4 Notwithstanding
Clause 4.2 the Buyer shall be obliged to take delivery of the Products within 30
days of the Seller giving it notice that the Products are ready for delivery.
Failure by the Buyer either to take delivery or to make payment in respect of
any one or more instalments of Products shall entitle the Seller to terminate
the Contract, (such right is without prejudice to any other rights and remedies
available to the Seller).
4.5 Where the Buyer
requests and the Seller agrees to postpone delivery, or where delivery is
otherwise postponed without default by the Seller, the Buyer shall pay upon
demand all reasonable costs and expenses including reasonable storage and
transport costs. The Buyer shall pay for the Products in accordance with these
conditions as if the same had been delivered on the due date but for any
postponement at the request of or due to the default of the Buyer. The Seller
shall be entitled to claim interest pursuant to Clause 7.3.2 from the date on
which payment would otherwise have fallen due if no such postponement had
occurred.
4.6 Unless otherwise
expressly agreed in Writing the Seller may deliver in instalments in which case
each instalment shall be treated as a separate Contract governed by these
conditions. No delay in the delivery of any instalment of Products or any defect
therein shall entitle the Buyer to terminate remaining
Contracts.
5. RISK AND TITLE
5.1 Risk of damage to or loss of the Products shall pass to the Buyer upon delivery
and the Buyer is then solely responsible for all loss damage or deterioration to
the Products.
5.2 Title to the Products
shall not pass to the Buyer until either:-
5.2.1 the Seller has received
in cash or cleared funds all monies due and payable by the Buyer to the Seller;
or
5.2.2 when the Seller serves on the Buyer notice in Writing specifying
that title in the Products or any part thereof has
passed.
5.3 Until title has
passed to the Buyer the Seller may recover the Products and the Seller's
officers, employees, representatives or agents shall be entitled to enter upon
any premises where such Products are kept, with or without vehicles, for the
purpose either of recovering the same or satisfying itself that Clause 5.4 is
being complied with.
5.4 Until title to the
Products has passed to the Buyer it shall possess the Products as fiduciary
agent and bailee of the Seller and shall store the Products separately from
other goods and shall ensure that they are fully insured on an all risks basis
and clearly identifiable as belonging to the
Seller.
6. CANCELLATION AND AMENDMENT
6.1 Cancellation or amendment of any Contract requires the prior approval in Writing
of the Seller and shall be conditional upon the Buyer indemnifying the Seller
against all reasonable costs and expenses incurred by the Seller as a result of
such cancellation and amendment.
6.2 Products returned to
the Seller without the Seller's written consent will not be accepted for
credit.
7. TERMS OF PAYMENT
7.1 Unless
otherwise agreed by the Seller in writing, payment shall be made according to the terms of the Contract
and of invoice and the Seller shall be entitled to issue
invoices in the month in which the Products are delivered or would have been
delivered save for postponement otherwise than due to default on the part of the
Seller. Time for payment of the price is of the essence of the Contract. No
payment shall be deemed to have been received until the Seller has received
cleared funds.
7.2 All payments made by the
Buyer to the Seller under any Contract subject to these conditions shall be made
free of any restriction or condition and without deduction or withholding on
account of any other amount and/or claim, whether by way of set-off or otherwise
and whether such amount and/or claim is connected to any Contract subject to
these conditions or otherwise.
7.3 In the event of default in
payment by the Buyer the Seller shall be entitled without prejudice to any other
right or remedy:-
7.3.1 to suspend without notice all further deliveries
on any Contracts between the Seller and the Buyer;
7.3.2 to charge interest
on a daily basis (after as well as before judgment) on any amount
outstanding, together with any statutory
debt recovery costs; and/or
7.3.3 to serve notice on the Buyer requiring
immediate payment for all Products supplied by the Seller under any
Contract.
8. MINIMUM CHARGE
A minimum order charge is applicable to all orders. Regular issues against blanket or scheduled orders will incur a minimum charge per release.
9. SPECIFICATIONS
9.1 Subject to Clause 9.2 the Products shall in all material respects be in
accordance with any agreed specification or if there is no agreed specification
shall be generally in all material respects in accordance with any published
specification issued by the Seller.
9.2 The Seller reserves
the right to make changes in dimensions or other specifications of the Products
to conform to applicable standards or laws or are otherwise reasonable having
regard to the nature of the Products.
9.3 The information
contained in the advertising, sales and technical literature issued by the
Seller may be relied upon to be accurate in the exact circumstances in which it
is expressed. Otherwise, any illustrations, performance details, examples of
installations and methods of assembly and all other technical data in such
literature are based on experience and upon trials under test conditions and are
provided for general guidance only. No such information or data shall form part
of the Contract unless the Buyer shall have complied with Clause 1.5 relating to
statements and representations and the Seller shall have given the confirmation
referred to in that Clause.
10. LOSS SHORTAGES AND DAMAGE APPARENT ON DELIVERY INSPECTIONS
10.1 The Buyer
shall only be entitled to claim (and subject to Clauses 11 and 12) for shortages
or defects in the Products which are apparent on visual inspection if the
Buyer:-
10.1.1 inspects the Products within 5 days following
receipt;
10.1.2 notifies the Seller of any loss, shortages or damage
(otherwise than by a qualified signature on the delivery note) within 5 working
days of receipt; and
10.1.3 demonstrates to the satisfaction of the Seller
that such loss, shortages or damage occurred prior to delivery.
10.1.4
Deficiencies, which are not obvious, have to be identified not later than within
30 days from products’ reception.
10.2 The Buyer shall have no rights in respect of loss shortages or damage unless the
Seller is given a reasonable opportunity to inspect the Products and investigate
any complaint before any use of or alteration to or interference with the
Products.
10.3 On a valid complaint
made in accordance with this Clause 10 the Buyer shall be entitled (in the case
of notified shortages) to receive within a reasonable time a delivery of
Products equivalent to the shortfall and (in the case of defects) to repairs to
or replacements for the affected Products or at the Seller's option a credit for
the price thereof but the Seller shall have no further liability whatsoever. If
a complaint of loss shortages or damage on delivery is not made to the Seller in
accordance with this Clause 10 then the Products shall be deemed to be delivered
complete and undamaged in accordance with the Contract and the Buyer shall be
bound to pay for the same accordingly.
10.4 Loss shortages or
damage in a delivery or any instalment delivery shall not be a ground for
termination of the Contract or the remainder of the Contract (as the case may
be).
11. WARRANTY
11.1 Except as otherwise provided for in these conditions, Sections 13 to 15 of the
Sale of Goods Act 1979 (as amended) are to be implied into the
Contract.
11.2 Subject to the
following terms of this condition the Seller guarantees that the Products will
be free from defects as a result of faulty design, workmanship or materials
(other than free issue materials). This guarantee shall be for a period of two
years from the date of delivery of the Products or the product achieving the
recommended maximum life usage for the Product whichever is the earlier. This
guarantee is subject to:-
11.2.1 the Seller receiving written
notification of the defect within the period of this guarantee;
11.2.2 the
Product being made available to the Seller for inspection without any further
use of, or alteration to, or interference with the Product;
11.2.3 the defect
is not a loss, shortage, or damage that the Buyer should have notified to the
Seller under condition 10;
11.2.4 the defect is not a result of any design
specification or instruction given by the Buyer;
11.2.5 that the Buyer has
fully complied with any instructions of the Seller concerning the use and
storage of the Product.
On receipt of notification of a claim by the Buyer
under this condition 11.2 the Seller may at its discretion repair or supply
satisfactory substitute Products free of cost or repay the price of the
Product(s) in whole or in part (as appropriate) within a reasonable time of the
complaint being made. For the avoidance of doubt the guarantee under this
condition shall not cover any deficiencies in the Products associated with
normal wear and tear.
11.3 If the Seller does
repair the Products or supply satisfactory substitute Products or effect
repayment under Clause 11.2, the Buyer shall be bound to accept such repaired or
substituted Products, or repayment and the Seller shall be under no liability in
respect of any loss or damage of whatever nature arising from the initial
delivery of the defective Products or from the delay before the defective
Products are repaired or the substitute Products are delivered or the repayment
is effected.
11.4 In the case of
Products not manufactured by the Seller:-
11.4.1 the Seller gives no
assurance or guarantee that the sale or use of the Products will not infringe
any third party Intellectual Property Rights; and
11.4.2 the obligations of
the Seller relating to defects in such Products are limited to the guarantee (
if any) which the Seller receives from any manufacturer or supplier of such
products.
11.5 The Seller shall not
be liable for and the Buyer shall indemnify the Seller against all costs,
claims, damages, liabilities and expenses incurred by the Seller arising from
any use by the Buyer of Products after the Buyer became or ought reasonably to
have been aware of a defect.
12. LIMITATION OF LIABILITY
12.1 The Seller does not exclude liability arising under Section 12 of the Sale of
Goods Act 1979 (good title) (as amended) or for death or personal injury caused
by its negligence or for fraudulent misrepresentation.
12.2 Under no circumstances whatsoever shall the Seller be liable in contract, tort
or otherwise howsoever arising for any claim, damage, loss or costs in respect
of:-
12.2.1 any direct loss of profit; or
12.2.2 any direct loss of
anticipated savings; or
12.2.3 any indirect or consequential loss or damage
howsoever caused including, without limitation:-
(a) any loss of
profit
(b) loss of use of money
(c) loss of anticipated savings
(d)
loss of business
(e) loss of opportunity
(f) loss of goodwill
(g) loss
of reputation
(h) loss of data
(i) any wasted expenditure; and/or
(j)
any necessary product recall.
For the avoidance of doubt, the Sub-clauses in
this Clause 12.2 are intended by the parties to be
severable.
12.3 Without prejudice to
Clause 12.1, the Seller's maximum aggregate liability for all claims made by the
Buyer in relation to any Contract shall not exceed the contract price for the
Products, and the Buyer agrees to insure adequately to cover claims in excess of
such amount.
12.4 Prices are quoted by
the Seller on the basis of the limitations of liability set out in these
conditions. The Buyer shall be entitled to request the Seller to agree a higher
limit of liability and the Seller may then quote a revised price taking account
of any increased insurance premium to be borne by the
Seller.
12.5 The Buyer shall
indemnify the Seller against all losses, costs, claims, damages, expenses and
liabilities in respect of or arising out of any injury, loss or damage
whatsoever suffered by or occasioned to any person arising out of or in
connection with the supply by the Seller of the Products or any act or omission
of the Buyer in its performance of its obligations under the Contract, except
where any such claim or loss is a direct result of any negligent act or default
of the Seller.
13. CONFIDENTIAL INFORMATION ETC
All drawings documents records computer software and other information supplied by the Seller whether produced by itself or a third party, are supplied on the express understanding that copyright is reserved to the Seller (or the third party) and that the Buyer will not without written consent of the Seller either give away loan exhibit or sell the same or extracts therefrom or copies thereof or use the same in any way except in connection with the Products in respect of which they are issued.
14. INTELLECTUAL PROPERTY
14.1 Subject to Clause 14.2 if the Buyer is subject to a claim or threatened with any
action alleging that the Products in the form supplied infringe any third party
Intellectual Property Rights then provided that the Buyer promptly informs and
fully co-operates with the Seller and if requested allows the Seller the conduct
and defence thereof the Seller will indemnify the Buyer against any costs claims
damages liabilities and expenses incurred by the Buyer as a result of such
proceedings.
The Seller shall have the option at its own expense either to
modify any infringing Products so that they do not infringe or to replace the
Products with a non-infringing substitute or to repurchase the Products from the
Buyer at the price paid by the Buyer less an allowance for the use made
thereof.
14.2 The Seller shall
have no liability in respect of claims for infringement of third party
Intellectual Property Rights arising from the manufacture or supply of the
Products to the Buyer's instructions or in accordance with designs plans or
specifications given by the Buyer and the Buyer shall indemnify the Seller
against all losses damages expenses costs or other liability arising from such
claims.
15. CUSTOMER'S DRAWINGS
The Buyer shall be solely responsible for ensuring that all drawings information advice and recommendations specified or given to the Seller by the Buyer or its agents servants consultants or advisers are accurate correct and suitable. Examination or consideration by the Seller of such drawings information advice or recommendations shall not result in any liability on the part of the Seller
16. TERMINATION
16.1 Without prejudice to any other rights or remedies of the Seller it shall be
entitled in any of the following circumstances to terminate (in whole or in
part) the Contract and/or to suspend deliveries and/or to receive upon demand
payment of all monies due and payable by the Buyer:-
16.1.1 the Buyer
makes or proposes any voluntary arrangement with its creditors or becomes
subject to an administration order or becomes bankrupt or goes into
liquidation;
16.1.2 an encumbrancer takes possession or a receiver is
appointed over any of the property or assets of the Buyer;
16.1.3 the Buyer
becomes unable to satisfy its debts as they fall due or ceases or threatens to
cease to carry on business;
16.1.4 the Seller reasonably believes that any of
the events mentioned above or any equivalent or similar event under any relevant
laws to which the Buyer or any connected person is subject has or may
occur;
16.1.5 the Buyer commits or allows to be committed any material breach
of this Contract.
17. FORCE MAJEURE
17.1 Neither party shall be liable for any failure to perform any of its obligations
under the Contract for any reason whatsoever outside its reasonable control
including without limitation, acts of God strikes, riots, lock-outs or other
industrial action including trade disputes ( whether such dispute involves its
employees or not ), shortage of materials or by any other act, matter or thing
beyond its reasonable control.
17.2 In the event that
either party does not perform its obligations by reason of any of the causes
referred to in Clause 17.1 within six months after the time for performance then
the other party may by written notice terminate the Contract without liability
save that the Buyer shall pay for any Products delivered or completed at the
time of termination.
18. TOOLS
Any tools (such as jigs. dies, etc ) which the Seller may construct or acquire specifically in connection with the Products shall, notwithstanding any charges the Seller may make for them, be and remain the Seller's sole and unencumbranced property and in the Seller's possession and control without restriction.
19. FREE-ISSUE MATERIALS
19.1 Free issue material shall be insured by and remain at the risk of the Buyer at
all times and the Seller shall not be liable for loss of or damage to any such
free issue materials during fabrication by the Seller, or by any sub-contractor
employed by the Seller or whilst on the premises of the Seller or of any such
sub-contractor or in transit to or from the premises of the Seller or of any
such sub-contractor provided that the Seller may at its sole discretion make a
contribution towards the replacement costs of such materials.
The Buyer shall
indemnify the Seller against all losses costs claims damages liabilities and
expenses in respect of any injury, loss or damage whatsoever arising out of or
in connection with the supply by the Seller of free issue material except where
any such loss or damage is a direct result of any negligent act or default of
the Seller.
19.2 An allowance for
material lost as process scrap is (where applicable) included in the Contract
price and no such losses shall be the subject of any claim by the Buyer or
contribution by the Seller.
19.3 Where materials used
in the manufacture of the Products are supplied by or on behalf of the Buyer to
the Seller, the Buyer shall be responsible to ensure that the material is of
satisfactory quality and is fit for its purpose and shall indemnify the Seller
against any loss, damage, injury or expenses whatsoever arising directly or
indirectly from any fault in or incorrect specification of the said
materials.
20. CONSUMER PROTECTION ACT 1987
20.1 Where the Buyer purchases the Products for use or incorporation with any
composite products to be assembled produced processed packed or supplied by the
Buyer or for resale or supply ancillary to any such composite products or other
products supplied by the Buyer then:-
20.1.1 the Buyer shall forthwith on
demand produce for inspection by the Seller copies of all written instructions
information and warnings to be supplied by the Buyer in relation thereto
provided that such inspection or right to inspect shall not give rise to any
responsibility or liability on the part of the Seller; and
20.1.2 the Buyer
shall indemnify the Seller against any losses costs and damages that the Seller
may suffer or incur in the event that any claim is made against the Seller in
relation thereto if the Products did not comprise the defective element thereof
or were rendered defective by reason of actions or omissions of the Buyer
(including without limitation the supply of defective free-issue materials) or
were rendered defective by reason of instructions or warnings given or omitted
by the Buyer or other reseller.
20.1.3 The Seller shall indemnify the Buyer
against all losses, costs and damages that the Buyer may incur in the event that
any claim is made against the Buyer in relation to the Products in circumstances
where the Product is defective due to the acts or omissions of the
Seller.
20.2 For the purpose of
Clause 20.1 the term "defective" shall be interpreted in accordance with the
definition of "defect" contained in Part 1 the Consumer Protection Act
1987.
21. HEALTH & SAFETY
The Buyer agrees to comply with any information and instructions supplied by the Seller relating to the Products including but not limited to any conditions necessary to ensure that they will be safe and without risk to health at all times when they are being set, used, cleaned, serviced or maintained by any person. The Buyer shall take such steps as specified by such information or otherwise necessary to ensure that as far as is reasonably practicable the Products will be safe and without risk to health at all times.
22. GENERAL
22.1 No waiver
of or delay or failure by the Seller to exercise any rights or remedies shall
prejudice or preclude any future or further exercise
thereof.
22.2 If any provision of these
conditions shall be held invalid or unenforceable in whole or in part then the
unaffected provisions shall remain in full force and effect. Headings appear for
convenience only and shall not affect the construction of these
conditions.
22.3 Nothing in these conditions
shall create a partnership, agency or relationship of employment between the
parties.
22.4 Except as otherwise
provided in this Contract, a person who is not a party to this Contract shall
have no right pursuant to the Contracts (Rights of Third Parties) Act 1999 (the
“Act”) to enforce any terms of the Contract. Any right or remedy which exists or
is available apart form the Act is not affected.
22.5 The parties agree that any
disputes arising or in any way connected with the subject matter of these
conditions and any Contract (whether of a contractual or tortious nature or
otherwise) shall be subject to the laws of Lithuania and in the case of proceedings issued
against the Seller shall be subject to the jurisdiction of the Lithuanian courts only.
