General Terms and Conditions of Sale – Auto Electrical Supplies Corp
- Definitions In these Conditions,
the following words shall have the following meanings:
1.1 ‘Buyer’ means the person who buys or agrees to buy the goods from the Seller;
1.2 ‘Delivery Date’ means the date when the Goods are to be delivered as specified by the Seller;
1.3 ‘Goods’ means the articles which the Buyer agrees to buy from the Seller; ‘Price’ means the price for the Goods outlined by the Seller on the Purchase Order or otherwise confirmed with the Buyer;
1.4 ‘Seller’ means Auto Electrical Supplies Corp of 2400 Elmhurst Road, Elk Grove Village, Illinois, 60007, USA.
1.5 ‘Specification’ means the description of the Goods provided on the manufacturers product specifications which are changed from time to time and the information provided on the Seller’s website is strictly for reference only.
- Conditions applicable
2.1 These Conditions (‘the Seller’s Conditions’) apply to each order that the Seller accepts from the Buyer and to all agreements for the sale of Goods by the Seller to the Buyer.
2.2 No contract shall arise between the Seller and the Buyer until the Seller has accepted an order from the Buyer.
2.3 Notice or receipt by the Buyer of the Seller’s Promotional Literature shall not in any circumstances constitute an offer capable of acceptance by the Buyer but shall instead constitute an invitation by the Seller to prospective Buyers to place an order with the Seller on the Seller’s Conditions.
2.4 The Seller accepts orders solely at the Seller’s discretion and solely on the Seller’s Conditions. Consistently with the previous and with this clause generally, and for the avoidance of doubt:
2.4.1 the making of an order by the Buyer shall be on the express understanding that any contract(s) arising from and on the Seller’s acceptance of that order is made on the Seller’s Conditions;
2.4.2 the acceptance of an order by the Seller shall be on the express understanding that any contract(s) arising from that acceptance is made on the Seller’s Conditions.
2.5 There shall be no valid variation of these Conditions that is not confirmed and recorded in writing by the Seller or by the Seller’s authorised representative.
2.6 These Conditions shall override and displace any terms under which the Buyer seeks to transact business or otherwise to enter into legal relationships.
2.7 In sending an order to the Seller, the Buyer undertakes:
2.7.1 that the Customer has not sought in placing its order, and will not seek at any time before or after the conclusion of a contract between the Seller and the Buyer, to impose upon any legal relationship between the Seller and the Buyer any term(s) other than, in opposition to, or at variance with these Conditions;
2.7.2 that in the event that the Buyer asserts, or acts in any other manner intended or calculated to bring into existence, an agreement concluded between the Seller and the Buyer on term(s) other than, in opposition to, or at variance with these Conditions, the Seller shall (without prejudice to such other remedies as the Seller may be entitled to exercise) have the option of declaring any such agreement to be void and of no effect, and of renouncing without liability any obligation that the Seller might otherwise have owed or incurred by virtue of any such agreement;
2.7.3 that in addition to its operation as a term of any contract concluded between the Seller and the Buyer on these Conditions, this clause 2.7.3 shall constitute an independent and freestanding offer to prospective Buyers on the terms expressed in clause 2.7.4;
2.7.4 that the terms of the offer referred to in clause 2.7.3 are as follows:
18.104.22.168 that this offer shall be accepted when any prospective Buyer accepts, asserts, or acts in any other manner intended or calculated to bring into existence an agreement between the Seller and the Buyer on term(s) other than, in opposition to, or at variance with the Seller’s Conditions, and
22.214.171.124 that on acceptance of this offer in accordance with clause 126.96.36.199, the Seller shall have the option of declaring any such agreement to be void and of renouncing without liability any of the obligations that the Seller might otherwise have owed or incurred by virtue of any such agreement, and shall be entitled to recover on an indemnity basis all costs and losses incurred by the Seller in resisting or otherwise responding to any such assertion or action on the part of the prospective Buyer.
2.8 In this clause 2.3 ‘Promotional Literature’ means any catalogue, list, mailshot, advertisement or quotation for Goods, whether online, in print or otherwise, or any material posted by the Seller on the Seller’s Website.
2.9 The Seller may make changes to these Conditions from time to time and shall, in that event, notify any existing Buyer before such changes take effect. The Buyer’s acceptance of further goods and/or payment of further instalments due after the date the Seller notifies the Buyer of a change shall constitute and be deemed to constitute the Buyer’s binding acquiescence in those changes. Any Buyer who, being party to an ongoing contract for the supply of Goods by the Seller, does not wish to accept the changes may terminate that ongoing contract by serving written notice on the Seller within 7 days after receiving notice of the relevant changes.
- Purchase Order
3.1 The Buyer shall pay the Price for the Goods as stated on the Seller’s Purchase Order and not (where different) as expressed in any quotation, estimate or documentation, or given orally.
3.2 The Buyer shall ensure that the terms of the Purchase Order are complete and accurate and include the correct part numbers and prices.
4.1 Payment for the Goods shall be made on the Payment Date specified on the Invoice.
4.2 All amounts stated are exclusive of VAT and any other applicable taxes or levies, which shall be charged in addition at the rate in force at the date any payment is required from the Buyer.
4.3 If payment is not received by the due date, the Seller at its exclusive discretion shall be entitled:
4.3.1 to charge interest on the outstanding amount at the rate of 8% per annum above the base lending rate of HSBC Bank accruing daily; and/or
4.3.2 to require that the Buyer make a payment in advance of any delivery not yet made; and/or
4.3.3 not to make any delivery.
5.1 The Seller shall deliver the Goods ex works for collection by the Buyer on the Delivery Date. In line with Incoterms 2010 the Seller accepts no liability (public, transit, marine or any other) from the Buyer, or any 3rd party, for the Goods once they have left the Sellers premises
5.2 The cost of delivery shall be in addition to the Price.
5.3 The cost of delivery shall be subject to the method of delivery and shall be payable at the same time and in the same manner as the Price.
5.4 For the avoidance of doubt, both the Delivery Date and any other date given under or pursuant to this Agreement is no more than an estimate, and the Seller’s conformity with such date is not, and shall not in any event or circumstance be or become, of the essence in these Conditions.
5.5 The Seller does not provide any movement certificates such as, but not limited to, A.TR and EUR1. Should the Buyer require such documentation these shall be obtained via their shipping agent or broker.
The risk in the Goods shall pass to the Buyer at the Sellers place of business.
- Retention of Title
7.1 Notwithstanding the transfer of risks according to clause 6, ownership of all Goods supplied or to be supplied to the Buyer shall remain with the Seller until all amounts payable by the Buyer in respect of Goods supplied or to be supplied have been paid in full to the Seller.
7.2 The Buyer will notify the existence of the Seller’s ownership of the Goods to any third-party to whom the Buyer sells the Goods.
7.3 Even when payment has been received in full by the Seller in respect of the Goods delivered, ownership of the Goods shall remain with the Seller until payment has been received in full in respect of all other sums due from the Buyer to the Seller on any account
7.4 As long as the title to the Goods remains with the Seller, the Buyer may not encumber them or purport to transfer title to them for security purposes. The Buyer shall immediately notify the Seller by registered or recorded delivery letter if a third party attempts to seize or exercise any lien over the Goods. The Buyer shall bear the cost of any such action resulting from such attempted seizure or lien.
- Force Majeure
8.1 The Seller shall not be liable to the Buyer by reason of any delay in performing, or failure to perform, any of its obligations in the Seller’s Conditions if the delay or failure was caused by Force Majeure or events such as fire, flood, explosion, epidemic, riot, civil commotion, any strike, lockout or other industrial action, act of God, war or warlike hostilities or threat of war, terrorist activities, accidental or malicious damage, any prohibition or restriction by any governments or other legal authority which affects the Buyer’s order and which is not in force on the date of this agreement, breakdown of machinery, interruption of transport or delay en route, interruption or delay in delivery of components, energy or raw materials or other events independent from the will of the Seller and its suppliers.
8.2 The Seller must notify the Buyer of the nature and extent of the circumstances in question as soon as practicable, as well as their termination.
8.3 If such circumstances continue for more than 6 (six) months, the Buyer shall be entitled to terminate this agreement and the Seller shall not incur any liability.
9.1 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 during the period of 3 (three) months following the date the Goods have been delivered.
9.2 The above warranty is given by the Seller subject to the following conditions:
9.2.1 The Buyer gives written notice of the defect to the Seller, within 2 (two) calendar days following the day the Buyer discovers or ought to have discovered the defect;
9.2.2 The Seller is given a reasonable opportunity of examining such Goods and the Buyer returns such Goods to the Seller’s place of business at the Seller’s cost for the examination to take place there;
9.2.3 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;
-if the Buyer makes any further use of such Goods after giving notice of the defect;
-arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice, misuse or alteration or repair of the Goods without the Seller’s written approval;
-if the total price of the Goods has not been paid by the due date for payment;
9.2.4 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.
9.3 If the Buyer does not inform the Seller within the time in Clause 9.2.1, the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with their specification.
9.4 Subject to clause 9.2 and 9.3, if it is shown to the satisfaction of the Seller that the defect is covered by the warranty in clause 9.1, the Seller will at its option either replace or repair such defective Goods or refund the price of such Goods at the pro rata contract rate, provided that, if the Seller so requests, the Buyer shall return the Goods which are defective to the Seller.
9.5 Goods returned to the Seller by the Buyer as defective but found on inspection by the Seller to be in good order will be returned to the Buyer, will be subject to a handling charge and shipped “Ex Works”.
9.6 The Seller shall be under no liability whatsoever (whether in tort or under any contract) in respect of any loss, damage, injury or expense arising from any defect in the Goods (whether or not such defect is due to negligence or breach of duty on the part of the Seller) and in particular shall not be liable for the cost of any work done, any consequential damages or expenses or any loss of profit or liability to third parties incurred by the Buyer in consequence of such defect.
9.7 Save as provided in Clauses 9.1 and 9.4 above, all guarantees or warranties (as to quality or description of the goods or their fitness for any purpose or as to wear or their use under any conditions, whether known or made known to the Seller or not) are hereby excluded to the fullest extent permissible by law. Provided that nothing herein shall be construed or applied so as to exclude or limit the Seller’s liability for death or personal injury resulting from the Seller’s negligence, for fraud or fraudulent misrepresentation.
9.8 Unless stated in the Purchase Contract, and specifically agreed by Seller, the Buyer shall be wholly responsible for ensuring that the goods supplied are used in such a manner as to ensure compliance with Directives on Electro-Magnetic Compatibility such as Directive 2004/108/EC and/or its equivalent for Telecommunications Equipment (Directive 1999/5/EC).
9.9 Goods supplied by the Seller are not supplied for aerospace or aeronautical applications and the Buyer shall not use the Goods in such applications. The Seller be under no liability to the Buyer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, or otherwise) for any, damage or direct, indirect or consequential loss caused arising from the Buyer, or any third party the Buyer has supplied the Goods to, using the Goods for aerospace or aeronautical applications.
9.10 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.
The Buyer must notify any claims for non-delivery and shortages, in writing to the Seller within 2 (two) calendar days from the date of invoice (or from the date the Goods are delivered whichever is the latter). Otherwise the entire shipment shall be deemed to have been delivered in accordance with the invoice and the invoice to be correct in all respects.
- Returned Goods
11.1 Product returns from the Buyer shall only be accepted by the Seller if agreed by the Seller in writing in advance and if the returned Goods are presented with a Returned Material Authorization (RMA) form approved by the Seller in advance. This RMA shall be attached to the returned Goods prior to their dispatch to the Seller.
11.2 No deduction from any monies to be paid will be allowed for returned Goods until such credit note has been issued.
11.3 All made-to-order Goods shall not be returned to the Seller.
11.4 Goods delivered in minimum/multiple package quantities must be returned in total in their original packaging, must be in saleable condition and must conform to their current catalogue description.
- Intellectual Property Rights
12.1 The Seller is not obliged to provide any of the manufacturers plans for the manufacturing and production of the Goods, nor any details out of these, even if the Goods are supplied with an installation scheme.
12.2 Any copyright or other industrial or intellectual property rights in all plans, specifications, drawings, patterns, models, weights, directions, guidelines, descriptive data, trade secrets and all technical information supplied to the Buyer shall remain the property of the Seller. The Buyer shall keep confidential and not publish or communicate (wilfully or not) to any third-party any part of the content thereof nor any particulars in respect of the Goods supplied by the Seller without the prior consent in writing of the Seller. The Buyer shall only use such information for the specific needs of the business and for the maintenance of the Goods.
12.3 The Seller reserves the right to supply Goods with changed designs at any time without notice to the Buyer, as well as any plans, specifications, drawings, patterns, models, weights, directions, guidelines, descriptive data, trade secrets and all technical information.
12.4 Technology, know-how, patented or not, incorporated in the Goods or any other intellectual property rights in respect of the Goods will remain the exclusive ownership of the manufacturer via the Seller. The manufacturer via the Seller only grants to the Buyer a non-exclusive and non-transferable right to use and maintain the product. Excluded is the right to produce or have manufactured any spare or replacement parts for the Goods.
12.5 The Buyer agrees not to use the name of the manufacturer or the Seller or the name of any subsidiary, division, or affiliate of the Seller group (or any abbreviation or variation of such names) without the prior and specific written approval of the Seller. To that effect, the Buyer shall first submit the intended representations in catalogue models and sales media to the Supplier in order to obtain approval and will seek additional approval in case any material change to agreed representations is considered. Such approval shall not be unreasonably withheld or delayed.
13.1 No inaction, omission, failure or delay by the Seller in exercising or securing the enforcement or validity of any right, power, privilege or demand arising under or in connection with these Conditions, and no single or partial exercise of any such right, power, privilege or demand shall impair the existence, operation, content, effect and enforcement of the said right, power, privilege or demand, or operate as a waiver of it.
13.2 The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
If any provision of these Conditions is prohibited by law, or is determined by any court of law or other binding adjudicatory authority or conceded by the parties to be unlawful, void or unenforceable, the provision:
14.1 shall, to the extent required and as far as possible, be severed from these Conditions and rendered ineffective without modifying the remaining provisions; and
14.2 shall not in any way affect any other particular provisions of this Agreement or the validity or enforcement of these Conditions generally.
In this Agreement unless the context otherwise requires:
15.1 words importing any gender include every gender;
15.2 words importing the singular number include the plural number and vice versa;
15.3 words importing persons include firms, companies and corporations and vice versa;
15.4 references to numbered clauses and schedules are references to the relevant clause in or schedule to this Agreement;
15.5 the headings to the clauses, schedules and paragraphs of this Agreement are not to affect the interpretation;
15.6 any reference to an enactment includes reference to that enactment as amended or replaced from time to time and to any subordinate legislation or byelaw made under that enactment;
16.1 Any notice to be given under this Agreement shall be in writing and shall be sent by first-class mail or air mail, or by facsimile or email (confirmed by first-class mail or air mail), to the address of the relevant party last advised to the other party.
16.2 Notices sent as in clause 16.1 shall be deemed to have been received, in the case of inland first- class mail, 2 working days after the day of posting, in the case of air mail, 7 working days after the date of posting, in the case of fax messages, on the next working day after transmission but only if a transmission report is generated by the sender’s fax machine recording a message from the recipient’s fax machine confirming that the facsimile was sent to the number indicated above and that all pages were successfully transmitted, or in the case of email, when the email first appears in the inbox of any email system that can reasonably be assumed to be used by the recipient.
Both the Seller and the Buyer shall each keep confidential and shall not without the prior consent in writing of the other disclose to any third party any technical or commercial information which it has acquired from the other as a result of discussions, negotiations and other communications between them relating to the Goods.
- Law and jurisdiction
The validity, construction and performance of this Agreement and of all other rights and liabilities arising in connection with this Agreement shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts, to which the parties submit.
- Third parties
For the purposes of the Contracts (Rights of Third Parties) Act 1999 and notwithstanding any other provision of these Conditions, this Agreement is not intended to, and does not, confer on any person who is not a party to this Agreement:
19.1 any right to enforce any of its provisions; or
19.2 any right to avail itself of any defence expressed in this Agreement.