PCB Offshore T&C

Last Updated on Tuesday, 29 November 2011 09:30

1.     Application of Conditions to all Contracts

1.1    The following Standard Conditions of Sale shall apply to all Contracts for the sale of goods by eXception VAR Ltd to any company, firm, body or person purchasing the goods whether directly or indirectly through an agent or factor who is acting for or instructed by or whose actions are ratified by such company, firm, body or person (the "Customer"). No other terms and conditions shall apply except such additional conditions as may be agreed between an authorised representative of eXception VAR Ltd and the Customer in writing

1.2    Any conditions endorsed on, delivered with or contained in the Customers order, specification or other similar document will not form part of the Contract unless specifically agreed in writing by the parties. All drawings, descriptive matter, specifications and advertising issued by eXception VAR Ltd and any descriptions or illustrations contained in eXception VAR Ltd catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of goods described by them. They will not form part of the Contract

2.    Orders

No order given by the Customer either verbally or in writing shall be deemed accepted unless confirmation in writing is given by eXception VAR Ltd and any order placed by the Customer will be treated only as an offer to purchase goods on these conditions. Once confirmed by way of an order acknowledgement all orders shall be subject to these conditions

3.   Time and Place for Delivery and Despatch

3.1  Any times quoted for delivery or despatch by eXception VAR Ltd are given in good faith but are to be treated as estimates only. eXception VAR Ltd will use its reasonable endeavours to meet estimated times for delivery or despatch, but eXception VAR Ltd shall not be liable for the consequences of any delay or failure to deliver if the duration of the delay is not substantial or if the delay or failure is due to any circumstances beyond eXception VAR Ltd reasonable control or of an unexpected or exceptional nature

3.2   Delivery of the goods will be deemed to take place when the goods are delivered to the Customer at the place stated in eXception VAR Ltd acknowledgement of order or such other place as the parties may agree except that delivery to a carrier for the purpose of transmission to the Customer will be deemed to be delivery to the Customer and sections 32(2) and (3) of the Sale of Goods Act 1979 will not apply

3.3   eXception VAR Ltd will use its reasonable endeavours to ensure where necessary that the goods will be packed so as to be adequately protected against damage in normal conditions of transit of usual duration.  eXception VAR Ltd will make such arrangements for the carriage and insurance of the goods as it thinks appropriate but the Customer will indemnify eXception VAR Ltd against any export, import and/or local duties or any other applicable taxes eXception VAR Ltd incurs as a result of such carriage and insurance such duties etc to be paid by the Customer when it is due to pay for the goods

3.4   The time for the delivery of the goods will not be of the essence of the Contract

3.5    eXception VAR Ltd may deliver the goods in instalments. Deliveries of further instalments may be withheld until the goods comprised in earlier instalments have been paid for in full. Default by eXception VAR Ltd (howsoever caused) in respect of one or more instalments will not entitle the Customer to terminate the relevant Contract as a whole

3.6    In the event of any delay in the delivery of any goods which are attributable to the Customers actions or failure to act then delivery of the goods will be deemed to have taken place at the time at which but for such delay or delays such delivery or performance would have taken place and any extra costs (including but not limited to storage and insurance costs) incurred as a result of such delay or delays will be added to the Contract price and will be payable by the Customer

4.    Cancellation of Order

If an order is cancelled or reduced in quantity, then the Customer shall indemnify eXception VAR Ltd against all cost, including material, labour and associated overhead costs, charges, expenses and losses (including loss of profit), arising out of such cancellations

5.    Extra cost

The Customer shall be responsible for ensuring the accuracy of the terms of any order and for giving eXception VAR Ltd all necessary information relating to the goods. In the event of any additional expenses, costs, losses or liabilities incurred by eXception VAR Ltd as a result of the Customers inadequate instructions or lack of instructions the Customer shall reimburse all such expenses to eXception VAR Ltd

6.    Damage of Goods in Transit

6.1   The goods shall be deemed to have been delivered complete, within the tolerances listed in clause 7.1 and in satisfactory condition unless in the case of damage, non- delivery or partial loss notification is received by the carrier and eXception VAR Ltd in writing other than on the delivery note within seven days of the delivery. In the event of the loss of an entire shipment, notification is required in writing by eXception VAR Ltd within fourteen days of the sending to the Customer of the invoice for the relevant goods

6.2    Subject to such notice being provided eXception VAR Ltd will, if it is reasonably satisfied that any goods have not been delivered and which fall outside of the tolerances listed in clause 7.1 as a result of eXception VAR Ltd' fault (in its sole discretion) either arrange for delivery as soon as reasonably possible or (where the Contract price has been invoiced) give credit (at the pro rata Contract price) to the Customer for such goods. Any shortages in or non-delivery of part of the goods will not affect the Contract in respect of other parts of the goods

6.3   eXception VAR Ltd shall not be liable for any valid claim or damage unless notification is received and its liability shall (subject to clause 16.4) be limited to the price of the goods (or the relevant proportionate part thereof)

7.    Variation of Delivered Quantities from Ordered Quantities

7.1   eXception VAR Ltd reserves the right to treat any contract as having been completed where the number of goods delivered falls within the tolerances provided for below

Qty of goods ordered	Qty under order	Qty above order
1-10	-	1
11-25	1	2
26-50	2	2
51-100	2	3
100-500	3	3
500+	1% of ordered quantity	1% of ordered quantity

 

7.2   If eXception VAR Ltd complies with clause 7.1 it will subject to clause 16.4 have no further liability (in contract, tort (including but not limited to negligence) or otherwise) for such shortages or non-delivery

8.    Quality

8.1    eXception VAR Ltd warrants (subject to the provisions of this clause 8) that on delivery the goods will conform with the standard release and acceptance criteria identified in relevant IPC specifications. Any alternative specification must be agreed in writing between the parties

8.2    In the event of any claim that the goods do not conform with the warranty in clause 8.1, the Customer must; -

8.2.1   Notify eXception VAR Ltd in writing within 14 days of the delivery date of their intention to return the goods (where the defect is apparent on reasonable inspection), or

8.2.2   Notify eXception VAR Ltd in writing within 14 days of the date when the Customer discovers or ought to reasonably to have discovered the defect (where the defect was not apparent on reasonable inspection), and

8.2.3   Return the goods to eXception VAR Ltd together with a written report detailing the reason for rejection within 4 weeks from the delivery date where the defect is apparent on reasonable inspection and 4 weeks from the discovery or when discovery ought to have been made of the defect where the defect was not apparent on reasonable inspection

If the above clauses 8.2.1 8.2.2 and 8.2.3 are not complied with (time shall be the essence of the clauses) eXception VAR Ltd shall not be liable to the Customer and the Customer shall remain responsible for the price of the goods as if they had been delivered in accordance with the Contract

8.3   eXception VAR Ltd will not be liable for a breach of the warranty in clause 8.1 where and to the extent that:

(a)   the defect arises from the Customer's Property or as a result of the Customer's negligence. For the avoidance of doubt Customers Property means any dies, tools, patterns, drawings, specifications, designs, packagings and any other equipment, goods, materials, instructions or information supplied by or on behalf of the Customer to eXception VAR Ltd in connection with the goods

(b)  the defect arises as a result of fair wear and tear, accident, misuse, wilful damage, or abnormal working conditions;

(c)   the defect arises as a result of any parts, materials or equipment not supplied by eXception VAR Ltd;

(d)   the Customer makes any further use of such goods after giving written notice of the defect;

(e)   the defect arises because the Customer has failed to follow eXception VAR Ltd' instructions (whether oral or in writing) as to the storage, assembly, installation, commissioning, use, processing, handling or maintenance of the goods or (if there are none) good trade practice;

(f)   the defect arises as a result of any installation, testing or commissioning of the goods performed by the Customer or any third party;

(g)   the defect arises as a result of any alteration, servicing or repair of the goods not made by eXception VAR Ltd and without the written consent of eXception VAR Ltd

8.4    Where there is a valid claim that the goods failure to correspond with their agreed specification, eXception VAR Ltd shall be entitled to replace the goods or part in question, or, at eXception VAR Ltd' sole discretion, refund to the Customer the price of the goods (or a proportionate part of the price) but eXception VAR Ltd shall subject to clause 16.4 have no further liability to the Customer

8.5    Complaints by the Customer in respect of goods alleged to be defective shall not be a valid reason for non-payment of other amounts due from the Customer and shall not give any right of set-off against payments due from the Customer to eXception VAR Ltd

9.    Prices

9.1    The price of the goods shall be eXception VAR Ltd quoted price for the stipulated quantities named in the quotation given by eXception VAR Ltd and such price shall be valid for 30 days from the date of issue unless withdrawn earlier in writing. eXception VAR Ltd shall be entitled to review the price thereafter. If at the date of delivery there has been any variation in any costs the prices payable may be increased accordingly

9.2    All prices quoted are exclusive of VAT (and any other tax relating to the manufacture, transportation, sale or delivery of the goods) and are not subject to any discount unless specifically agreed in writing

9.3    All prices quoted are subject to amendment in the event of the exchange rates between Sterling and the US Dollar fluctuating in excess of 5 cents from the rate ruling at the date quoted

10.    Carriage and Delivery

Unless otherwise specified in writing, all prices exclude packing and delivery to nominated Customers premises. The Customer shall be responsible for paying these charges in addition to the price of the goods if requested to do so

11.    Payment

11.1   The Customer shall pay the price of the goods within thirty days of the date of eXception VAR Ltd invoice. The time of payment of the price shall be of the essence of the Contract

11.2   No payment will be deemed to have been received until eXception VAR Ltd receives cleared funds

11.3   If the Customer fails to make any payment on the due date, then without prejudice to any other right or remedy available to eXception VAR Ltd, eXception VAR Ltd shall be entitled to: -

11.3.1   Terminate the contract or suspend any further deliveries to the Customer

11.3.2   Appropriate any payment made by the Customer to such of the goods (or the goods supplied under any other contract between the Customer and eXception VAR Ltd) as eXception VAR Ltd may think fit and

11.3.3   Charge the Customer interest (both before and after any judgement) at a rate of 2% per annum above the HSBC Bank Plc base rate from time to time accruing on a daily basis on the outstanding amount until payment is made. eXception VAR Ltd reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998

12.    Force Majeure

eXception VAR Ltd will not be liable to the Customer or be deemed to be in breach of these Conditions by reason of any delay in performing or failure to perform any of its obligations under these Conditions if such delay or failure was beyond eXception VAR Ltd reasonable control. If eXception VAR Ltd is unable to perform its obligations under these Conditions in accordance with this clause 12 it will promptly notify the Customer of the nature and extent of the circumstances in question

13.  Risk

Risk of damage to or loss of the goods shall pass to the Customer at the time of delivery or deemed delivery (as appropriate) and loading and off loading (as appropriate) will be at the Customer's risk. Section 20(2) of the Sale of Goods Act 1979 will not apply

14.   Reservation of Title

14.1   Notwithstanding delivery and the passing of risk in the goods (both legal and equitable) or any other provision of these conditions title in the goods shall not pass to the Customer until eXception VAR Ltd has received in cash or cleared funds:

(a) payment in full of the price of the goods; and

(b) and all other sums which are or which become due to eXception VAR Ltd from the Customer on any account

14.2   Until such time as title in the goods passes to the Customer the Customer shall hold the goods as eXception VAR Ltd fiduciary agent and bailee and shall keep the goods separate from those of the Customer and third parties and properly stored, protected and identified as eXception VAR Ltd property. Until that time the Customer shall be entitled to resell or use the goods only in the normal course of its business

14.3   Until such time as title in the goods passes to the Customer (and provided the goods are still in existence and have not been resold) eXception VAR Ltd shall be entitled at any time to require the Customer to give up the goods to eXception VAR Ltd and if the Customer fails to do so forthwith to enter upon any premises of the Customer or any third party where the goods are or may be stored and repossess the goods

14.4   The Customer 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 eXception VAR Ltd but if the Customer does so, all monies owing to eXception VAR Ltd shall (without prejudice to any other right or remedy of eXception VAR Ltd) forthwith become due and payable

14.5   Until such time as title in the goods passes the Customer shall maintain the goods in satisfactory condition, insured on eXception VAR Ltd behalf for their full price against all usual risks to the reasonable satisfaction of eXception VAR Ltd and on request produce such policy of insurance to eXception VAR Ltd. The Customer shall hold all proceeds of the insurance on trust for EXception VAR Ltd and not mix it with any other monies or pay the proceeds into any overdrawn bank account

15.  Supply of Product on Consignment Basis

The goods shall only be supplied on a consignment basis under which goods are held by the Customer and not invoiced until used by the Customer only following agreement in writing to a separate stocking agreement between the Customer and eXception VAR Ltd

16.  Liability

THE PRICES CHARGED FOR THE GOODS ARE BASED STRICTLY ON THE UNDERSTANDING OF ACCEPTANCE BY THE CUSTOMER OF THE PROVISIONS IN THE CONTRACT FOR THE LIMITATION OF EXCEPTION VAR LTD' LIABILITY

16.1   Subject as expressly provided in these conditions all warranties, conditions or other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by the law

THE CUSTOMER'S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CLAUSES 16.2 AND 16.3

16.2    (Subject to clause 16.1 and 16.4) eXception VAR Ltd will not be liable to the Customer in contract, tort (including but not limited to negligence), misrepresentation, warranty or otherwise for any:

(a)   economic loss of any kind (including but not limited to loss of use, profit, anticipated profit, business, contracts, overhead recovery, revenue or anticipated savings);

(b)   any damage to the Customer's reputation or goodwill;

(c)   any product recall or business interruption costs: or

(d)   any other special, indirect or consequential loss or damage (even if eXception VAR Ltd has been advised of such loss or damage) arising out of or in connection with the Contract

16.3   (Subject to the provisions of clause 16.1, 16.2 and 16.4) eXception VAR Ltd' total liability in contract, tort (including but not limited to negligence), misrepresentation or otherwise arising out of or in connection with this Contract will be limited to the amount received by eXception VAR Ltd for the claim under its insurance policy covering such risks (provided that nothing in these Conditions will oblige eXception VAR Ltd to obtain any insurance or claim upon any insurance which it holds) or £5 million sterling (whichever is the greater). The Customer acknowledges that delay in notifying any claim may prevent eXception VAR Ltd recovering any money under such policy

16.4   Nothing in these conditions restricts or excludes eXception VAR Ltd' liability for fraudulent misrepresentation or for death or personal injury caused by the negligence of eXception VAR Ltd, it’s employees or agents

16.5   The provisions of this clause 16 shall survive the termination or expiry (for whatever reason) of this Contract

17.  Termination

17.1    This clause applies if: -

17.1.1    The Customer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt (or being a company) goes into liquidation (otherwise than the purposes of amalgamation or reconstruction) or

17.1.2    An encumberancer takes possession or a receiver is appointed over any of the property or assets of the Customer or,

17.1.3    The Customer ceases or threatens to cease to carry on business or,

17.1.4    eXception VAR Ltd reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer

17.2    If this clause applies, then without prejudice to any other right or remedy available to eXception VAR Ltd, eXception VAR Ltd shall be entitled to terminate the Contract or suspend any further deliveries under the Contract without any liability to the Customer and if the goods have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement to the contrary

17.3    eXception VAR Ltd may terminate the Contract immediately if the Customer is in breach of any term of the Contract and has failed to remedy such breach within 28 days of receipt of written notice specifying the breach and requiring it to be remedied

18.   Intellectual Property Rights

18.1    The Customer will keep eXception VAR Ltd indemnified in full against all liability, loss, damage, injury, claim, action, demand, expense or proceeding in respect of any infringement or alleged infringement of any Intellectual Property Rights resulting from any compliance by eXception VAR Ltd with the Customer's instructions or use of the Customers Property, whether express or implied

18.2    For the avoidance of doubt Intellectual Property Rights means patents, trade marks and service marks, rights in designs, trade or business names, copyright (including rights in computer software), database rights and topography rights (whether or not any of these is registered and including applications for registration of any such thing) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these which may subsist anywhere in the world

18.3    The Intellectual Property Rights in all works owned by eXception VAR Ltd prior to the date of the Contract will remain vested in eXception VAR Ltd

19.  Lien

In addition to any other right to which eXception VAR Ltd may, by law, be entitled, eXception VAR Ltd shall be entitled to a general lien on all goods of the Customer in eXception VAR Ltd possession (although such goods or some of them may have been paid for) until all monies due to eXception VAR Ltd under the terms of this Contract and all other contracts between the Customer and eXception VAR Ltd have been paid in full

20.  Laws

These Conditions and all contracts shall, in all respects, be construed and operate in accordance with English Law and the parties irrevocably submit to the exclusive jurisdiction of the courts of England

21.    Notices

All notices and other communications in respect of these conditions of sale shall be in writing and shall be deemed to have been duly given when delivered, if delivered by hand during normal business hours of the recipient, when sent, if transmitted by telex or facsimile transmission (receipt confirmed) or electronic mail during normal business hours of the recipient, or on the third business day following mailing, if mailed by recorded or registered mail, postage paid. All notices to eXception VAR Ltd shall be sent to the company secretary, 32 Harris Road, Porte Marsh Industrial Estate, Calne, Wiltshire, SN11 9PT. The Customers address for service shall be its registered office or last known place of business

22.    Miscellaneous

22.1    If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, unenforceable or unreasonable it will, to the extent of such illegality, invalidity, voidness, unenforceability or unreasonableness, be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect

22.2    Failure or delay by either party in exercising any right or remedy provided by the Contract or by law will not be construed as a waiver of such right or remedy or a waiver of any other right or remedy

22.3    Any waiver by either party of any breach of, or any default under, any provision of the Contract by the other party will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract

22.4    A person who is not a party to the Contract will have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.   This clause 22.4 does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act