General Conditions of Sale and Delivery
Effective January 1, 2000
1. General
The following General Conditions of Sale and Delivery shall become an integral part of the contract of sale. Any contrary or contradictory purchasing conditions of the Buyer and any other reservations made by the Buyer shall not be recognised unless approved from case to case explicitly and in writing by the Seller. The specification of the International Bureau for the Standardisation of man-made Fibres (BISFA) effective at the time of sale form an integral part hereof.
2. Quotation & Orders
(i). Offers by the Seller shall be without obligation as to price, quantity, time of delivery and availability.
(ii). Orders placed by the Buyer shall not bind the Seller except by written or printed confirmation by the Seller (which may be an invoice or delivery note).
3. Specifications
Where orders do not include definite specifications, the Buyer shall specify quantity, titre, diameter, manufacturing form, colour and make-up not later than four weeks before the beginning of the months for which delivery is requested. After this date, the Seller shall be entitled to specify the order on the basis of earlier purchases made by the Buyer and with binding force on the Buyer.
4. Deviations in Weight, Colour, Quantity
(i). Normal commercial deviations in quantity delivered (of up to 5% or, in the case of special production runs, of up to 10%) shall be permissible where such deviations are due to the nature of production.
(ii). Where sales are based on conditioned weight, the BISFA regulations shall apply.
(iii). Normal commercial deviations in the shade and in the quality of natural and dyed goods shall be permissible where such deviations are due to the nature of the raw materials used.
(iv). Tolerance parameters err on the side of over delivering specification. Natural products allow an average tolerance of + 5% with a maximum of 7.5% over stated diameter while dyed products allow an average tolerance of +7.5% with a maximum of 10% over stated diameter.
(v). Any checking or inspection shall be performed by official institutions engaged in testing goods in accordance with DISFA regulations. Where no such regulations have come into force yet for certain products or make-ups, normal commercial practice shall be followed.
(vi) No automatic guarantee is given as to knot strength due to the variations cause by different dyestuffs, additives and the differing nature of knots. Guidelines are given for information only.
5. Invoicing
(i). The prices charged shall be the Seller's prices applying at the time of delivery.
(ii). If the Seller, between the conclusion of the contract and the delivery of the goods, generally increases his prices, the Buyer shall be entitled to withdraw from the contract within two weeks of publication of the new prices, unless a price increase is exclusively due to an increase in freight rates. Such right withdrawal shall not apply to supply contracts with longer terms (long-term commitments).
(iii). Where payment is made in any currency other than Sterling i.e. in foreign currency, the Seller reserves the right to lower or increase his selling price in foreign currency when invoicing to ensure that the invoice amount correspond to the Sterling equivalent as calculated on the basis of the foreign currency, debt at the time of contracting.
(iv). The weight required for invoicing shall be established at the dispatch point in the Seller's supply plant.
6. Payment
(i). Payment from non account customers is required on a pro forma basis.
(ii). Payment terms for account customers are 30 days from date of invoice. Payments made by transfer must reach our bank on or before the 30th day after the invoice date.
(iii). Account customers are offered an additional benefit of 5% settlement discount off the nett invoice amount for payments that reach our bank within 10 days of the date of invoice.
(iv). Where the term of payment is exceeded, interest at a rate of 2% above the current Discount Rate of the Bank of England may be charged. Should the Buyer default, the Seller reserves his statutory rights to claim for loss due to non-performance and to withdraw from the contract. In addition, any outstanding claims under existing contracts shall become due and payable at once.
(v). Where there is justified doubt as to the solvency or credit standing of the Buyer and where the Buyer, in spite of his being called upon to do so, is unwilling to pay in advance or to provide adequate security for performance, the Seller may withdraw from the contract where he himself has not yet performed his obligations.
(vi). Payment shall not be deemed to have been effected until the amount in question is available without qualification in one of the accounts of the Seller.
(vii). The Seller reserves the right to use any payments in settlement of items which have been outstanding longest plus
any default interest and cost accrued thereon, in the following order: costs, interest, principal claim.
(viii). The Buyer may not withhold any payments and may only offset unchallenged or legally recognised claims.
7. Delivery
The date of delivery shall be the day on which the goods leave the Seller's factory or warehouse or, if such date cannot be ascertained, the day on which the goods are placed at the disposal of the Buyer.
8. Force Majeure, Impediments to Performance
Force majeure of any kind; unforeseeable disruptions to operations, transportation or dispatch; fire damage; floods; unforeseeable shortage of labour; power, raw materials or auxiliary materials; strikes; lockouts; official orders, or other impediments for which the party liable to perform is not answerable and as a result of which production, shipment, acceptance or use are reduced delayed, prevented or cannot reasonably be expected of either party, shall relieve the Seller of his obligation to deliver and the Buyer of his obligation to take delivery as long as, and to the extent that, the disturbance continues. If, as a result of the disturbance, the delivery and/or acceptance are/is delayed by more than 8 weeks, either party shall have the right to withdraw from the contract. In the event of the suppliers of the Seller ceasing wholly or in part to supply, the Seller shall not be obliged to purchase his supplies from other sources. In any such case, the Seller shall be entitled to meet first his own requirements and to distribute thereafter any goods available for sale.
9. Shipment
(i). The Seller reserves the right to choose the mode and route of transport. Any additional costs incurred as a result of special shipping requests made by the Buyer shall be for the account of the Buyer. Unless carriage-free delivery terms have been agreed upon, the Buyer shall also bear any increases in freight rates occurring after conclusion of the contract as well as any additional charges for re-routing, storage of the goods, etc.
(ii). The risk of destruction, loss of or damage to the goods shall pass from the Seller to the Buyer on dispatch of the goods or, where the goods are collected by the Buyer, when they are placed at the Buyer's disposal.
10. Returnable Packaging Material
Any returnable packaging material used shall remain the property of the Seller and shall be returned not later than three months (overseas six months) after the invoice date, carriage-free and at the Buyer's risk. Where the packaging material is not returned in a serviceable condition within the stipulated time, the Seller reserves the right to charge the Buyer with its replacement value.
11. Special Orders/Contracts
Special orders for Buyers for products which require specific production either under the Buyer's own label/brand or under no brand, require a payment of 25% in advance on each order prior to production commencing. The balance is then required according to their status as a pro forma or account Buyer.
With long term contracts, a payment of 25% is only required with the first order. Subsequent orders will be produced on receipt.
12. Artwork and Origination
Where the Seller undertakes artwork or design for the Buyer, a charge will be made at the standard nominal rate effective at the time. Similar when an item of packaging is produced from either the Buyer's artwork or from artwork created on their behalf, an origination charge will be made at a nominal rate.
A proof will be submitted in each case which must be signed by the Buyer and returned to the Seller before any production can proceed.
Once proofs are signed off, any artwork and origination charges will be invoiced and these are payable by return.
Artwork produced by the Seller on behalf of the Buyer becomes the property of the Buyer once it has been paid for and all rights to such artwork are assigned at that time.
13. Customers Packaging Materials
When the Seller produces packaging materials for the Buyerr such as labels, insert cards, baxes etc., the Seller needs to produce minimum quantities of such materials in order to give the Buyer competitive pricing. Such production and stocking is done at the Seller's expense. However, in the event of the product being unordered for a period of 12 months or more, the Seller reserves the right to invoice the Buyer for such stocks and ship such stocks to the Buyer.
In the event of a contract being terminated or range being deleted by the Buyer, the Seller reserves the right to invoice the Buyer for any remaining stocks and deliver them to the Buyer or dispose of them as the Buyer prefers.
14. Damages
(i). No claims for damages - whether contractual or non-contractual - shall be lodged by the Buyer in the case of any sight breach of duty by the Seller, his executive staff or other assistants, unless such breach involves a duty that is essential for achieving the object of the contract.
(ii). In the case of any direct loss not foreseeable at the time of conclusion of the contract, the Seller shall only be liable for gross negligence on the part of the Seller himself or a member of his executive staff.
(ii). This clause does not affect any mandatory legal liability provisions.
15. Complaints
(i). Complaints will be considered only if they are filed in writing without delay and not later than 14 days after arrival of the goods. Such complaints shall be accompanied by supporting documents, samples, packing slips and information regarding the invoice number, invoice date and the markings shown on the packaging.
(ii). In the case of latent defect, a written complaint shall be filed immediately upon discovery of the defect, but not later than five months after arrival of the goods. This provision shall not affect the statutory period of limitation. The burden of proving a latent defect shall rest with the Buyer.
(iii). Goods alleged to be defective shall not be returned without the express consent of the Seller.
(iv). Where goods are sold expressly as being substandard in quality or as waste or scrap, no complaints or claims based on warranty shall arise.
16. Warranty
In the case of properly filled and substantiated complaints, the Seller shall be entitled to replace the defective goods. Should the Seller waive his right to replace such goods, or where such goods are not replaced within a reasonable term, or where the replacements themselves are defective, the Buyer shall be entitled, at his discretion, to demand a price reduction or return of the goods and reimbursement of the purchase price.
17. Technical Advise, Use and Processing
Any technical advice regarding applications provided by the Seller, whether orally, in writing or by way of trials, shall be given in good faith but without warranty, also where proprietary rights of third parties are involved. It shall not release the Buyer from the obligation to test the products supplied by the Seller as to the suitability for the intended processes and uses. Any application, use and processing of the products are beyond the control of the Seller and , therefore, entirely the Buyer's responsibility.
18. Trademarks
(i). Subject to the following paragraph, the term "NYLOTEC Textile Fibre", the trademark "Nylotec" (word) and "Nylotec Logo" as well as any other trademarks of the Seller shall not be used by the Buyer.
(ii). The preceding paragraph shall not apply to any trademark the use of which the Seller has permitted in writing.
19. Applicable Law, Interpretation of Clauses, etc.
(i). Any agreement shall be subject to English law. The uniform laws on the international sale of movable property and on the conclusion of international sales contracts for movable property both dated July 17, 1973 - shall not apply.
(ii). Trade terms as used in commercial practice shall be interpreted in accordance with the currently valid Incoterms.
(iii). If it has been agreed that customs and import charges payable in the county of destination shall be borne by the Buyer.
20. Place of Performance and Jurisdiction; Effectiveness
(i). Place of performance for delivery shall be the place from
where the goods are dispatched. Place of performance for payment shall be London.
(ii). Place of jurisdiction for both parties shall be London. The Seller shall also be entitled to enforce his claims at the Buyer's place of general jurisdiction.
(iii). Should any clause of these Conditions be or become wholly or in part ineffective, this shall not affect the validity of the remaining clauses or remaining parts of such clauses.
Any ineffective term shall be replaced by the parties with a valid term approximating as closely as possible to the economic purpose of such ineffective term.
21. Retention of Title
(i). Title to the goods shall pass to the Buyer only when the Buyer shall have met all his obligations arising from the business connection with the Seller, including incidental claims, for damages and the honouring of cheques and bills. "Sellers" within the meaning of this provision shall include any companies in which the Seller recognisably (e.g. on account of the name "NYLOTEC") has a direct or indirect interest of 50%
or more. The retention of title shall continue to exist even if individual claims of the Seller have been included in the current account and the balance has been acknowledged.
(ii). Where the Buyer fails to meet his obligations toward the Seller, the Seller shall be authorised, without allowing an extension of time and without declaring his withdrawal from the contract, to demand the return of any goods to which he has retained title. The taking back of such goods shall not constitute a withdrawal from the contract, unless this is expressly declared by the Seller in writing. Where the Seller withdraws from the contract, he may make a charge for the period during which disposal over the goods was left with the Buyer, such charge to be based on sec.2 of the Hire Purchase Act of the United Kingdom.
(iii). Where any goods to which the Seller has retained title are processed, the Buyer shall act for the Seller, without acquiring any claim against the Seller with regard to such processing. Thus, the Seller's title shall extend to any products made by processing the goods. Where the resulting products incorporate goods supplied by third parties to which third parties have retained title, the Seller shall acquire co-ownership of such products in the ratio of the respective invoice values of the processed goods to which the Seller and third parties have retained title. Where the goods of the Seller are incorporated in goods of the Buyer, the Buyer assigns to the Seller his title in respect of the new product.
(iv). The Buyer shall be obliged to take good care of the goods to which the Seller has retained title, to maintain and repair them at his own expense and to have them insured to a due and proper extent against loss and damage at his own expense. He assigns herewith to the Seller any claims arising from insurance policies.
(v). As long as the Buyer properly meets his obligations towards the Seller, the Buyer shall have the right to make such use of the products to which the Seller retains title as is required for the ordinary conduct of business, unless and to the extent that the Buyer and his customers have agreed on a prohibition of assignment with regard to the claim to the selling price. The Buyer shall not be entitled to pledge such goods or to assign them as security or to encumber them in any other way. When reselling such goods, the Buyer shall stipulate that the transfer of ownership be subject to full payment for the goods by his customers.
(vi). To provide security for all claims which the Seller may have on the Buyer, the Buyer hereby assigns to the Seller in advance all claims resulting from any resale of goods to which the Seller retains title, together with all accessory rights and security interests, including bills of exchange and cheques. Where goods to which the Seller retains title are sold together with other articles at a lump sum price, the assignment shall be restricted to the pro rata amount invoiced by the Seller for such goods. Where the Seller has co-ownership of the goods according to Clause 3 hereunder, the assignment shall be restricted to that part of the claim which corresponds to the Seller's co-ownership of the goods sold. As long as the Buyer punctually meets his financial obligations towards the Seller, he shall have the right to collect himself the amounts due to him from any resales. The Buyer shall not be entitled to pledge any items or assign them for any purpose whatsoever.
(vii). If it appears to the Seller that the enforcement of any claim is in jeopardy, the Buyer shall be obliged, at the request of the Seller, to inform his customers of the assignment of his claims to the Seller and to furnish the Seller with any information and documents required. The Buyer shall inform the Seller immediately of any acts by third parties affecting the goods to which title has been retained and any claims which have been assigned. Where the value of the security provided by the Buyer exceeds by more than 20% the value of claims to be secured, the Seller shall be obliged, at the Buyer's request, to release security to such extent. The choice of such security shall be l left to the Seller.
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