1. BASIS OF ORDER & ACKNOWLEDGEMENT
1.1 Unless other terms and conditions are expressly accepted by the seller by means of specific written amendment hereto signed by the seller or a director or partner of the Seller the contract will be on the terms and conditions set out below and overleaf (“The Contract Terms”) to the exclusion of any other terms and conditions (except those implied in the favour of the Seller which are not inconsistent with the Contract Terms) whether or not the same are endorsed upon, delivered with or referred to in any purchase order or other document delivered or sent by the Buyer to the Seller. Any referenced overleaf to the Buyer’s order, specification or like document will not be deemed to imply that any terms or conditions endorsed upon, delivered with or referenced to in any such order, specification or such like document will have effect to the exclusion of the Contract Terms.
1.2 A Contract shall not be effective until the Seller has issued written acknowledgment and acceptance of such Contract (notwithstanding any earlier confirmation of receipt). The Seller may in its sole discretion decline any purchase order placed by the Buyer.
1.3 Minimum order quantities and minimum Contract values, where necessary, may apply at the Seller’s discretion.
1.4 The Buyer shall ensure that the terms of its purchase order or request are complete and accurate.
1.5 No change or modification of Contracts issued shall be allowed after acceptance by the Seller unless authorized by a Change Order delivered by the Buyer and accepted in writing by the Seller.
2.1 Any quotation is given on the basis that no contract will come into existence until the Seller despatches an acknowledgement of order to the Buyer.
2.2 Any Quotation is valid for a period of 60 days only from its date provided that the Seller has not previously withdrawn it.
2.3 The description, part numbers and/or specification of the Product and/or Services shall be set out in the Seller’s quotation or the Seller’s acceptance of the Contract. All drawings, descriptions, weights, dimensions, etc. and advertising issued by the Seller (for example, in the Seller’s catalogues, website or price lists) are issued to provide an approximate idea of the Product or Services described in them and do not form part of the Contract unless expressly stated in the Contract or otherwise agreed to in writing by the Seller.
2.4 The Buyer shall determine the suitability of the Products for Buyer’s use and/or application. The Buyer shall be solely responsible for the accuracy of the Buyer’s designs, drawings, specifications and other data supplied to the Seller by the Buyer, even if the Seller examines, inspects, studies or comments to the Buyer regarding any such designs, drawings, specifications or other data.
3.1 The Seller will endeavour to deliver the goods to be supplied under the contract (“the Goods which expression includes any of them or any part of them) within the time agreed and if no time is agreed within a reasonable time, but in no circumstances will the Seller be liable for loss or damage of any kind whatsoever caused directly or indirectly by any delay in the delivery of the Goods, not unless such delay exceeds 180 days will any delay entitle the Buyer to terminate or rescind the contract.
3.2 The Seller may make delivery by instalments
3.3 Delivery will be made ex the Seller’s works and the contract price is calculated on that basis.
3.4 No claim for damage or shortage will be considered unless the Seller is advised in writing within 7 days of delivery. No claim for non-delivery will be considered unless the Seller is advised in writing within 14 days of the date of the Seller’s invoice. Any claim for damage, shortages or non-delivery shall also be notified to the carriers by the Buyer in the manner and within the appropriate time limit prescribed by the carrier’s terms and conditions.
3.5 The Seller will endeavour to supply the exact quantity ordered but the Seller may supply up to 10% more or less than the exact quantity ordered. A pro rata charge or allowance at the contract price will be made to cover any variation.
3.6 If for any reason the Buyer does not take delivery, or the Seller is unable to deliver such Product or Buyer Property on time because the Buyer has not provided appropriate instructions, documents, licences, authorisations, etc., then such Product or Buyer Property will be deemed to have been delivered and risk shall pass to the Buyer. The Seller may at its option:
(a) Store such Product or Buyer Property until actual delivery whereupon the Buyer will be liable for all related costs and expenses (including without limitation storage and insurance); or
(b) Reallocate or sell such Product or Buyer Property at the best price readily obtainable (after providing not less than thirty (30) days prior written notice to Buyer). Seller may charge the Buyer for any shortfall below the Contract price or account to the Buyer for any excess (after deducting all reasonable survey, repair, storage and selling expenses).
3.7 The Buyer shall promptly notify the Carrier of any damage to, loss from or non-receipt of any Product or Buyer Property if transportation has been arranged by or on behalf of the Buyer. The Seller shall not be liable for any such damage, loss or non-receipt.
3.8 The Buyer may arrange for testing and inspection of the Product before shipment at the Seller’s facility. If the Buyer has conducted such inspection, the Seller shall not be liable for any claim made after shipment in respect to any defect in the Product which would have been apparent upon such inspection.
3.9 The Seller may, at its option, make partial shipments of Product and invoice the Buyer for each shipment individually in which case each delivery shall constitute a separate contract. Failure by the Seller to deliver any one or more of the shipments in accordance with these terms and conditions or any claim by the Buyer in respect of any one or more shipments shall not entitle the Buyer to repudiate the whole Contract or refuse to accept subsequent shipments. The Buyer shall accept any early delivery.
4. GUARANTEE AND EXCLUSION CLAUSES
4.1 Where the Seller is not the manufacturer of the Goods the Seller will endeavour to transfer to the Buyer the benefit of any warranty or guarantee given by the manufacturer.
4.2 The Seller warrants that the Products furnished hereunder shall, at the time of delivery, be free from defects in material and workmanship. Services shall be performed with reasonable skill and care.
4.3 If the Buyer submits to the Seller reasonable written details (on Seller’s prescribed form if required) establishing a breach of the warranty set forth above, the Seller's liability for failure of any Product or Service to comply with the foregoing shall be limited to replacing or repairing that Product found to be defective within six months of delivery, and/or to re-performing the Services. Such Product will be repaired or replaced, at the Seller’s option, or Services re-performed, without charge, and re-warranted for the remainder of the original warranty period.
4.4 Seller shall pay all reasonable return packaging and transportation costs of a valid warranty claim. Seller is not liable for the removal of Products from, or installation of the Product into, any other property to which it may be attached or incorporated.
4.5 Seller may require the Buyer to deliver back Product or materials which have been replaced and legal title to the replaced Product shall re-vest in the Seller.
4.6 Seller’s performance of one of the above options shall constitute an entire discharge of Seller’s liability for breach of the warranty.
4.7 The Buyer is in breach of this or any other contract made with the seller. Any Goods replaced will belong to the Seller. Any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the 6 month period.
4.8 Save as provided in Clauses 4.1.and 4.2 the Seller will be under no liability under the contract for any personal injury, death, loss or damage of any kind whatsoever other than death or personal injury resulting from the Seller’s negligence whether consequential or otherwise including but not limited to loss of profits and the Seller hereby excludes all conditions , warranties and stipulations express or implied statutory, customary or otherwise which but for such exclusions would or might subsist in favour of the Buyer except that such exclusion will not apply to:-
4.9 Any implied condition that the Seller or will have the right to sell the Goods when the property is to pass; or
4.10 When the Buyer deals as a consumer (as defined in section 12 of the Unfair Contract Terms Act 1977), any implied term relating to the conformity of the Goods with their description or sample or as to their quality or fitness for a particular purpose.
4.11 In no circumstances will the Seller or its employees, agents or subcontractors be liable for any loss or damage of any kind whatsoever (other than death and personal injury resulting from Seller’s negligence) whether consequential or otherwise caused directly or indirectly by any negligence on the part of the Seller or on the part of any of its employees, agents or subcontractors in connection with or arising out of the manufacture or supply of the goods or in connection with any statement given or made (or advice not given or made) by or on behalf of the Seller.
4.12 For Product that is returned under warranty and is tested and no fault found, the Seller will be entitled to reimbursement from the Buyer for reasonable charges incurred for transportation, testing and evaluation.
4.13 Minor deviations from specifications which do not affect performance of the Products shall not be deemed to constitute defects in materials or workmanship or a failure to comply with the specifications referred to herein. The need for regular overhaul of warranted equipment shall not constitute a defect or failure under this warranty.
THERE ARE NO OTHER WARRANTIES, CONDITIONS OR TERMS, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. PASSING OF RISK AND TITLE
5.1 The risk in Products or Buyer Property shall pass to the Buyer on delivery as set forth herein.
5.2 Full legal, beneficial and equitable title to the Products shall remain vested in the Seller (even though they have been delivered and risk has passed to the Buyer) until:
(a) Payment in full, in cash or cleared funds, for all the Products has been received by the Seller; and
(b) All other money payable by the Buyer to the Seller on any other account or under the Contract or any other contract or order has been received by the Seller.
6. PROPERTY IN THE GOODS
6.1 The Buyer may convert or incorporate the Goods into or mix the Goods with other goods to produce the New Goods prior to the property in the Goods passing to the Buyer but in such event the property in the New Goods (whether the other goods into which the Goods have been converted or incorporated or with which the Goods have been mixed belong to the Buyer or not) shall be and remain with the Seller immediately upon such conversion, incorporation or mixture until
6.2 Until property in the Supplied Goods has passed to the Buyer or until delivery of the Supplied Goods to a third party pursuant to the permission given below, the Buyer will hold the Supplied Goods in a fiduciary capacity, will not obliterate any identifying mark on the Supplied Goods or their packaging and (save where the Goods are being converted or incorporated into or mixed with other goods to create New Goods) will keep the Supplied Goods separate from any other assets.
6.3 Prior to property in the Supplied Goods passing to the Buyer the Seller permits the Buyer to deliver the Supplied Goods to a third party pursuant to a bona fide and arms length agreement to sell the Supplied Goods.
6.4 The Buyer’s liberty to convert or incorporate the Goods into or mix the Goods with other goods and the Buyer’s liberty to deliver the Supplied Goods to a third party shall cease upon the happening of any of the events which enable the Seller to serve notice of termination of the contract.
6.5 Where the Seller is unable to determine whether any goods are the Goods then the Buyer shall be deemed to have converted, incorporated, mixed or sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer and any new goods so created shall be deemed to have been delivered to the Buyer’s customers in the order in which they were created.
6.6.1 The Seller may at any time after payment for the Goods has become due take possession of the Supplied Goods and remove them and the Buyer shall be deemed to have granted irrevocable authority to the Seller to enter the Buyer’s premises (or other premises where the Supplied Goods may be) by its employees or agents in order to take possession of the Supplied Goods and (if necessary) to dismantle the supplied goods from anything to which they are attached.
6.6.2 If prior to the expiry of 7 days from the date when the Seller has taken possession of the Supplied Goods the Buyer pays all sums then due or owing to the Seller together with the costs of taking possession of the Supplied Goods the Seller will redeliver to Supplied Goods to the Buyer at the Buyer’s expense. If within the 7 day period the Buyer fails to pay all the sums due or owing to the Seller, the Seller may sell the Supplied Goods and shall pay the Buyer the balance of any sums received upon the sales of the Supplied Goods after deducting all sums due or owing from the Buyer to the Seller and the costs of taking possession and of re-selling the Supplied Goods save that if the sums so received by the Seller do not exceed all sums due or owing from the Buyer to the Seller and the costs of taking possession and of reselling the Supplied Goods the Buyer shall pay to the Seller any shortfall.
6.7 The Seller will have the right to maintain an action against the Buyer for the price of the Goods notwithstanding that property in the Goods has not passed.
6.8 If the Buyer Sells the Supplied Goods before property in them passes to the Buyer, the Buyer will promptly account to the Seller for the proceeds of any such sale and prior to paying such proceeds to the Seller, the Buyer will hold the same in fiduciary capacity keeping the same separate from its other monies. On receiving such proceeds the Seller will return to the Buyer any sum paid in excess of the total sums due or owing from the Buyer to the Seller at the date of receipt by the Seller of such proceeds of sale.
6.9 Nothing in this contract will constitute the Buyer an agent of the Seller in respect of any sale of the Supplied Goods by the Buyer so as to confer upon a third party rights against the Seller.
6.10 For the avoidance of doubt the Supplied Goods shall be at the Buyer’s risk.
7.1 The contract price is based on the costs of material, labour, sub-contracts, transport, taxes, duties and currency exchange rates ruling at the date of quotation. The Seller reserves the right to amend the contract price to take account of any variations in these costs or the imposition of any new taxes or duties occurring from whatever cause between the date of the quotation and the delivery of the Goods.
7.5 Unless expressly stated otherwise all prices are exclusive of V.A.T
8.1 The price for all Goods supplied will become payable upon delivery and payment will be made by the Buyer within 30 days of the date of the Seller’s invoice.
8.2 The Seller reserves the right to revise payment terms at any time and to request guarantees, security, stage payments or cash in advance for the Products and/or Services. The Seller may, at its discretion, refuse or limit deferred payment terms to the Buyer.
8.3 The Seller may agree to accept payment for the Products and/or Services by credit card provided that the Buyer shall in addition to the price of the Products or Services pay any charge levied by the credit card company in respect of such transaction.
8.4 If any sum due from the Buyer to the Seller under the Contract or any other order is not paid to the Seller on or before the due date for payment, then all sums then owing by the Buyer to the Seller or any affiliate of the Seller shall become due and payable immediately and, without prejudice to any other right or remedy available to the Seller, the Seller and any affiliate shall be entitled to:
(a) Cancel or suspend performance of the Contract or any other contract or order placed with the Seller or any affiliate including suspending deliveries of the Product, Services or any other goods until arrangements as to payment or credit have been established which are satisfactory to the Seller; and/or
(b) Require the Buyer to pay for Products or Services prior to shipment from the Seller’s place of business; and/or
(c) Charge the Buyer interest calculated on a daily basis on all overdue amounts (both before and after judgment) until actual payment at the rate of four per cent (4%) per annum above the London Interbank Offered Rate (LIBOR) prevailing from time to time (or such other rate which is legally permissible) until payment is made in full.
8.5 Notwithstanding any Contract Term allowing the Buyer credit payment shall become due and payable to the Seller immediately upon happening of any of the events which enable the Seller to serve notice of termination of the contract.
8.6 Where the Buyer makes default under the contract or any other contract with the Seller in payment on the due date of any sum due to the Seller, the Seller without liability may postpone any delivery or may cancel the contract or any other contract between the Seller and the Buyer but without prejudice to any right or remedy which the Seller may have against the Buyer in respect of such default.
8.7 The Seller will be entitled to payment for all instalments of Goods delivered to the Buyer whether under a blanket order or otherwise.
8.8 The Seller shall at any time be entitled to appropriate any payment made by the Buyer in respect of any goods in settlement of such invoices or accounts in respect of such goods as the Seller may in its absolute discretion think fit notwithstanding any purported appropriation to the contrary by the Buyer.
9. LIMIT OF LIABILITY
9.1 These terms and conditions set out the entire liability of the Seller (including any liability for the acts or omissions of its sub-contractors) in respect of Products or Services supplied by the Seller and any representation, statement or omission including negligence arising under or in connection with the Contract.
9.2 Nothing in these terms and conditions shall exclude or limit the Seller’s liability for death or personal injury caused by the Seller’s negligence or for fraudulent misrepresentation or for any liability that cannot legally be excluded or limited. ANY LIMITATION OR EXCLUSION OF LIABILITY SHALL APPLY TO THE EXTENT PERMITTED UNDER APPLICABLE LAW.
9.3 THE SELLER SHALL NOT BE LIABLE FOR ANY ECONOMIC LOSS OF WHATEVER NATURE (WHETHER OR NOT SUCH LOSS OR DAMAGE WAS FORESEEN, DIRECT, FORESEEABLE, KNOWN OR OTHERWISE), INCLUDING LOSS OF ANTICIPATED PROFITS, LOSS OF ACTUAL PROFITS (DIRECT OR INDIRECT), LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS, OR FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE HOWSOEVER CAUSED OR ANY LOSSES ARISNG AS A RESULT OF ANY THIRD PARTY BRINGING A CLAIM OF ANY NATURE WHATSOEVER.
9.4 SUBJECT TO SECTION 9.2 ABOVE, THE TOTAL AGGREGATE LIABILITY OF THE SELLER ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR CONTEMPLATED PERFORMANCE OF THE CONTRACT WHETHER FOR NEGLIGENCE OR BREACH OF CONTRACT OR ANY CAUSE WHATSOEVER SHALL IN NO EVENT EXCEED THE PRICE PAID BY THE BUYER FOR THE PRODUCT OR SERVICES GIVING RISE TO THE BUYER’S CLAIM. NOTWITHSTANDING ANY OTHER TERMS AND CONDITIONS OF THE CONTRACT, THE SELLER SHALL HAVE NO LIABILITY FOR THE USE BY THE BUYER OF COMPONENT PARTS IN THE PRODUCT WHICH ARE NOT MANUFACTURED BY OR AUTHORISED BY THE SELLER.
9.5 The Products or Services are not designed or manufactured for clinical use and are not approved by the US Food and Drug Administration or other agencies for clinical or medical applications. Buyer agrees to indemnify and hold Seller harmless from and against any and all claims, actions, judgments, orders, awards, costs and/or expenses, on account of bodily injury including death and/or property damages sustained by Buyer, Buyer’s employees and/or third parties which arise out of or in connection with the medical or clinical use of the Products or Services.
10.1 If the Buyer cancels, extends or delays or purports to cancel, extend or delay the contract or part thereof, or fails to take delivery of any Goods at the time agreed (if any) or if no time is agreed within a reasonable time, then the Buyer will be liable (without prejudice to the other rights of the Seller to claim damages) to indemnify the Seller against any resulting loss, damage or expense incurred by the Seller in connection with the supply or non-supply of the Goods including the costs of any material, plant or tools used or intended to be used therefore and the costs of labour and other overheads including a percentage in respect of profit.
11. DESIGN AND TOOLS.
11.1 No variation by the Seller in the specification or design of any Goods shall constitute a breach of contract or impose upon the Seller any liability whatsoever.
11.2 the Seller shall be under no liability whatsoever to the Buyer in respect of any loss, damage or claim incurred by or made against the Buyer should any Goods supplied by the Seller infringe any patent, registered design, copyright or other intellectual property right protection or the provision of any statute, statutory instrument or regulation for the time being in force.
11.3 Unless otherwise agreed in writing all patterns, drawings etc produced by the Seller shall remain the property of the Seller and must not be used or copied by the Buyer.
11.4 Unless otherwise agreed in writing all tools, dies, negatives and like items (“the Tools”) produced, purchased or used by the Seller in the manufacture of the Goods or execution of the Buyer’s order shall remain the property of the seller and must not be used or copied by the Buyer notwithstanding any charge made to the Buyer in respect thereof.
11.5 The Seller shall in its absolute discretion store all Tools for a minimum period of 2 years after completion of an order for possible future orders from the Buyer. All reasonable care will be taken to preserve the Tools in good condition, however liability for loss or damage in respect of the Tools is excluded as provided by clauses 4.3 and 4.4 The Seller will, if requested to do so by the Buyer, destroy The Tools (place beyond a reusable condition) however the Seller shall not be required to provide The Tools to the Seller.
11.6 The Seller shall not be liable for any loss or damage occurring to the Buyer’s originals, artwork, raw materials, finished goods or any other articles whilst in the possession of the Seller or in transit whether or not such loss or damage shall be attributable to the negligence of the Seller, its servants, agents or sub-contractors.
12. SUBCONTRACTING, ASSIGNMENT AND THIRD PARTY RIGHTS
12.1 The Buyer shall not be entitled to assign, charge, subcontract or transfer the Contract or any part of it without the prior written consent of the Seller.
12.2 The Seller may assign, charge, subcontract or transfer the Contract or any part of it to any person, including its affiliate companies, without the consent of the Buyer.
12.3 Other than affiliates of the Seller, a person who is not a party to the Contract (including without limitation any employee, officer, agent, representative or sub-contractor of either party) shall not have any right to enforce any term of the Contract which expressly or by implication confers a benefit on that person without the express prior agreement in writing of the Seller and the Buyer.
12.4 Without prejudice to the intention of the parties to give no rights to the third parties under the Contract, any term of the Contract can be varied and the Contract can be cancelled or terminated without the consent of any third party who might benefit from its terms or have enforceable rights under the Contract.
12. FORCE MAJEURE
12.1 The Seller shall not be held liable for delay or failure in shipment or delivery of the Products or Services due to any cause beyond the reasonable control of the Seller, including, without limitation, war, fire, flood, strikes or other labour disturbance, accidents, Act of God, governmental order or requirement, interruption, obsolescence or shortage of materials, transportation facilities or energy supply, or events beyond the reasonable control of its suppliers or subcontractors (“Force Majeure”) and the Seller shall be excused from deliveries to the extent that deliveries may be prevented or delayed by the foregoing Force Majeure. During any such Force Majeure, the Seller will endeavour in good faith to allocate deliveries fairly among its buyers but expressly reserves in its discretion, without liability to the Buyer, the final determination of deliveries to be made. If said Force Majeure continues for a continuous period in excess of ninety (90) days the Seller may terminate the Contract without liability by providing written notice to the Buyer.
13. CONTRACT CANCELLATION, BREACH OF CONTRACT AND INSOLVENCY
13.1 The Buyer may only cancel a Contract (or any part of a Contract) which the Seller has already accepted, with the Seller’s prior agreement in writing and provided the Buyer indemnifies the Seller in full in terms established by the Seller. Cancellation charges may apply to such cancellation including but not limited to: (i) all amounts due under the Contract in respect of work performed and/or Products delivered up to the date of cancellation, including all applicable overhead and profit; (ii) any sums which have been paid by the Seller or become payable as a result of the cancellation to its subcontractors and supply chain to procure all or any part of the Products or Services for the Buyer’s requirements including all applicable overhead and profit; (iii) the cost of any work, materials and tooling incurred by the Seller, including initial costs, overhead, profit and preparatory expenses allocable thereto, used exclusively by the Seller to supply the Products and Services; (iv) any non-recurring engineering and project investment costs not paid by the Buyer or recovered by the Seller under the Contract; (v) the costs of settling and paying any losses, damages or claims arising out of the termination of work and (vi) reimbursing any other reasonable and proper sums suffered or incurred by the Seller solely in connection with or resulting from the cancellation of the Contract including without limitation overhead and the profit the Seller would have earned under the Contract.
13.2 The Buyer shall pay the Seller all cancellation charges within thirty (30) days of the date of Seller’s demand.
13.3 In the event (a) the Buyer commits a breach of any of its obligations under the Contract and fails to remedy such breach within a period of 14 days; or (b) the Buyer fails to make payment under the Contract when due, or suspends payments or is unable to pay its debts as they fall due; or (c) the institution of any proceedings by or against the Buyer, voluntary or involuntary, in bankruptcy or insolvency or for the appointment of an administrator, administrative receiver, receiver or trustee or an assignee for the benefit of creditors of the business or property of the Buyer; or (d) the Buyer suffers or undergoes an analogous procedure in the country in which the Buyer is established; or (e) the Buyer ceases, or threatens to cease, to carry on business; or (f) the Seller reasonably believes that any of the above events is about to occur in relation to the Buyer, then the Seller shall be entitled to cancel this Agreement forthwith by written notice without prejudice to any rights arising prior to said cancellation. The Buyer shall pay cancellation charges as set out in this section.
14.1 Failure by the Seller to enforce any of the Contract Terms will not be construed as a waiver of any of its rights hereunder.
14.2 The legal construction of these clauses shall not be affected by their headings, which are for convenience or reference only.
14.3 The Buyer shall be deemed to have accepted the Goods as being in conformity with the Contract and shall be bound to pay for them unless written notice of rejection thereof is received by the Seller within 21 days of delivery
14.4 The buyer shall not be entitled to set off against sums due to the Seller under the Contract any amount, claimed by or due to the Buyer from the Seller whether pursuant to the contract or on any other account whatsoever.
14.5 Nothing in the Contract shall create, or be deemed to create a partnership or joint venture or relationship of employer and employee or principal and agent between the parties.
14.6 The rights and remedies of the Seller in respect of the Contract shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time granted by the Seller nor by any failure of or delay by the Seller in ascertaining or exercising any such rights or remedies. The waiver by the Seller of any breach of the Contract shall not prevent the subsequent enforcement of the Contract and shall not be deemed to be a waiver of any subsequent breach of that or any other terms and conditions.
14.7 If at any time any one or more of the terms of the Contract or any part of one or more of these terms and conditions is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted from the Contract and the validity and/or enforceability of the remaining terms and conditions of the Contract shall not in any way be affected or impaired as a result of that omission.
14.8 The Contract sets out the entire agreement and understanding between the Buyer and the Seller in connection with the sale of the Product or Services and shall supersede and replace all documentation previously issued by the Seller or the Buyer. In case of conflict, agreed terms appearing on the face of the Contract shall take precedence over these terms and conditions, and these terms and conditions take precedence over any other documents referred to in the Contract.
14.9 Headings are for reference only and shall not affect the interpretation of these terms and conditions.
15. CARE AND USE OF THE BUYER PROPERTY
15.1 The Seller shall use the Buyer Property solely for the purpose of the Contract and shall at the Buyer’s expense maintain the Buyer Property in good order, condition and repair while it is in the Seller’s possession or control.
15.2 On completion or termination of the Contract, unless otherwise directed by the Buyer in writing, the Seller shall return the Buyer Property to the Buyer. If the Buyer does not collect or accept delivery of such Buyer Property, the Seller may, after giving not less than thirty (30) days’ prior written notice, take reasonable steps to sell such Buyer Property at the best price readily available and account to the Buyer for any excess after deduction of all reasonable storage and selling expenses.
15.3 Without prejudice to any other rights and remedies which the Seller may have under the Contract, the Seller shall, in respect of all debts owed by the Buyer to the Seller, have a general lien on any of the Buyer Property in the Seller’s possession and the Seller shall be entitled after thirty (30) days' prior written notice to the Buyer to dispose of such of the Buyer Property as the Seller thinks fit and to apply any proceeds of sale towards the payment of such debts.
16. EXPORT AND GOVERNMENTAL COMPLIANCE
16.1 Each party agrees to comply with all applicable governmental regulations as they relate to the import, export and re-export of information and/or Products and/or Buyer Property. Without limiting the foregoing, the parties shall not disclose or deliver any information or Products and/or Buyer Property provided hereunder in any manner contrary to any applicable export laws and regulations. The parties acknowledge that these laws and regulations impose restrictions on import, export and transfer to third countries of certain categories of information and Products, and that licenses from the applicable regulatory agency may be required before such information and Products and/or Buyer property can be disclosed or delivered hereunder, and that such licences may impose further restrictions on use and further disclosure or delivery of such information and Products and/or Buyer Property.
16.2 The Seller shall not be liable for delays or refusals by governmental authorities or other authorities to grant licences or approvals, nor for suspension or revocation thereof, nor for changes in export classification. Buyer must deliver requested information, including end-user information, necessary for export licences to be granted.
17. CUSTOMER PROPERTY
17.1 The Seller shall not be liable for any loss or damage occurring to the Buyer’s originals, artwork, raw materials, finished goods or any other articles whilst in the possession of the Seller or in transit whether or not such loss or damage shall be attributable to the negligence of the Seller, its servants, agents or sub-contractors.
17.2 The Seller may reject any materials supplied or specified by the Buyer to the Seller, which appear to be unsuitable. Additional costs incurred if materials are found to be unsuitable or variable during production may be charged to the Buyer. The Buyer shall supply adequate quantities of materials to allow for normal spoilage. Not withstanding any other provision herein the Buyer will upon the written request of the Seller replace at the Buyer’s expense any material the Buyer supplies to the Seller which proves defective and the Seller shall be excused from delivering the Goods hereunder until a reasonable time after the Buyer replaces such defective material with material conforming to applicable specifications.
18. INTELLECTUAL PROPERTY RIGHTS
18.1 Any intellectual property rights (including, without limitation, patents, registered and unregistered designs, trademarks and service marks (registered or not) and copyright and any applications for them) in the Products or Services or in any moulds, tools, designs, drawings, or production data owned by the Seller or created by the Seller in the course of the performance of the Contract or otherwise used in the manufacture of the Products or the provision of the Services shall remain the Seller’s property unless otherwise expressly agreed by the Seller. The Seller grants, on full payment for the Products or Services the non-exclusive right for the Buyer and bona fide purchasers from the Buyer to use, for the operation of the Products or Services for their intended purpose only, (a) any software supplied with, or embedded in, the Products and Services, and (b) technical manuals and instructions relating to operation and maintenance of the Products and Services. The Buyer hereby grants to the Seller, a non-assignable non-exclusive, royalty-free licence to use any intellectual property rights (including, without limitation, patents, registered and unregistered designs, trademarks and service marks (registered or not) and copyright and any applications for them) owned by the Buyer to the extent necessary for the Seller to supply the whole or any part of the Products or Services in accordance with the Contract. Except as expressly stated herein, nothing in the Contract shall be deemed to have given the Buyer a licence or any other right to use any of the intellectual property rights of the Seller unless otherwise expressly agreed by the Seller.
19.1 Any notice to be given under this Contract shall be sufficient if it is in writing, to the attention of the chief executive officer of the other party, or otherwise as directed by each party from time to time, and delivered personally, or via registered or certified mail (postage prepaid with return receipt requested) (with a request for confirmation in a manner typical to the communication types listed previously). Notice shall be deemed sent and received on the date of actual receipt at the other party’s principal place of business.
20.1 The Buyer and Seller shall each keep confidential and shall not, without the prior written consent of the other, disclose to any third party or otherwise make public the terms or existence of the Contract or any other confidential or sensitive information of the other.
20.2 The Buyer agrees that it will not exhibit the Seller’s Product, advertisements or price lists relating to any of the Seller’s Product or Services without the prior written consent of the Seller.
The Seller shall, without prejudice to any other remedy available to it, have in respect of all unpaid debts due from the Buyer to the Seller a general lien on all Goods or property of the Buyer in the possession of the Seller for whatever purpose and whether worked upon or not and shall be entitled at the expiration of 14 days notice in writing to the Buyer to dispose of such Goods or property as the Seller shall think fit and to apply the proceeds of such disposal in or towards satisfaction of such debts.
22. LAW AND JURISDICTION
22.1 The Contract shall in all respects be construed according to and governed by the laws of the jurisdiction in which Seller is located, or if the Seller is organised under the laws of a state of the United States of America it shall be governed by the laws of the state of California. All disputes shall be referred to and resolved by binding arbitration in London under the Rules of the London Court of International Arbitration except for Seller companies located in the United States of America, for which the binding arbitration shall be administered in Los Angeles County, California by JAMS pursuant to its Streamlined Arbitration Rules and Procedures.
22.2 The United Nations Conventions on Contracts for the International Sale of Product 1980 shall not apply to any aspect of this Contract.