7. Delivery of the Goods
7.1 All Goods are sold Ex Works (Incoterms 2020) the Seller’s Warehouse. Delivery shall take place when the Seller makes the Goods available at the Warehouse to the Buyer or the Buyer’s agent on the delivery date. Unless otherwise stated in the Contract, the Buyer shall promptly make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
7.2 Where the Seller agrees in the Contract to make arrangements for the transportation of the Goods to the Buyer’s designated address on the Seller’s behalf, delivery and transfer of risk in the Goods shall still be deemed to take place at the Seller’s warehouse. The costs of carriage and insurance which the Buyer reasonably directs the Seller to incur shall be added to the Price and shall be due and payable with the Price. The carrier shall be deemed to act as the Buyer’s agent.
7.3 The Seller may deliver the Goods by separate instalments in accordance with the agreed delivery schedule. Each separate instalment shall be invoiced and paid for in accordance with the provisions of these Conditions. The failure of the Seller to deliver any one or more of the said instalments on the due date shall not entitle the Buyer to treat the contract as repudiated. The failure of the Buyer to pay for any one or more of the said instalments on the due date shall entitle the Seller (at the sole option of the Seller):
(a) without notice to suspend further deliveries of the Goods pending payment by the Buyer; and/or
(b) to treat the Contract as repudiated by the Buyer.
7.4 The Seller shall not be liable for any loss or damage whatever due to failure by the Seller to deliver the Goods (or any of them) promptly or at all. Dates of delivery are approximate only and shall under no circumstances be essential terms of any contract. A delay in delivery including delivery later than the date or dates in the Seller’s written quotation shall not constitute a breach of contract and shall not entitle the Buyer to avoid the contract or to any other remedy unless the Seller has guaranteed the date of delivery in a written warranty which expressly modifies the provisions of the Conditions. In particular, the Seller is not responsible for any loss or damage or expense caused by delay in deliveries or failure to deliver as a result of strikes, lock outs, penalty clauses, fire, the elements, war, civil commotion, industrial disputes, pandemics and epidemics, shortages of material or fuel notwithstanding that the Seller has taken all reasonable steps to procure the same, shortage of labour, breakdown or partial failure of plant or machinery, late receipt of the Buyer’s specifications or other necessary information, acts, orders, or regulations of governments, decisions or directives of the government, delay on the part of any subcontractor or supplier or any cause whatsoever beyond the reasonable control of the Seller and in such circumstances, notwithstanding any warranty given by the Seller modifying the provisions herein the time for Delivery of the goods shall be extended for a reasonable period having regard to the cause of the delay.
7.5 When the Buyer is notified that the Goods are ready for collection, the Buyer shall promptly collect the Goods without delays and in any event prior to any Delivery Date specified in the Contract. If the Goods are not collected by the Buyer within three (3) days of being so notified the Seller may despatch the Goods itself at the Buyer’s expense and risk or store them at the expense and risk of the Buyer.
7.6 The Seller reserves the right to charge the Buyer any costs, charges or expenses incurred by the Seller as a result of vehicle or wagon detention or demurrage of ships in consequence of any act or omission of the Buyer, its servants or agents or as a result of special requirements or stipulations of the Buyer not provided for in the Contract.
7.7 Notwithstanding that the Seller may have delayed or failed to deliver the Goods (or any of them) the Buyer shall be bound to accept delivery and to pay for the Goods in full provided that the delivery shall be tendered at any time within three months of the Delivery Date.
8. Acceptance of the Goods
8.1 The Buyer shall inspect and test the Goods and shall within ten (10) days after receipt and before use or resale, (a) notify the Seller in writing of any discovery that some or all of the Goods supplied under the Contract do not comply with the warranty set out Section 6.1; and/or (b) notify the Seller in writing of any shortage in quantity delivered.
8.2 Entirely without prejudice to any other limitation or exclusion under these Conditions, any right to cancel, reject, or claim damages of any kind shall expire, and the Buyer shall lose and waives any right to rely upon or claim nonconformity of the Goods including breach of a warranty given on delivery under Section 6.1, unless the Buyer’s written and particularised claim is received by the Seller (a) for all claims other than those for latent defects within ten (10) days after receipt and before use or resale; or b) for a latent defect (that is any defect or damage which would not be apparent on a careful and reasonable test and examination of the Goods), within 10 days of the date that the non-conformity was or should have been discovered and in any event 90 days of the date of delivery.
8.3 If no such notices as are required to be given in this Section 8 are given by the expiry of the specified time periods, the Goods will be deemed to be in compliance with all warranties and in the correct quantities, and any claims made by Buyer with respect to the Goods after the expiration of such period will be null and void.
9. Title and Risk
9.1 The risk in the Goods shall pass to the Buyer at delivery as provided in Section 7. Buyer assumes all risk or loss of and damage to the Goods from the time they are collected by a carrier, and any claims for loss and damage occurring during carriage shall be made by Buyer directly to the carrier, including where carriage is arranged on the Buyer’s behalf by Seller.
9.2 Title to the Goods supplied under a Contract shall not pass from the Seller to the Buyer until the Seller receives payment of the Price in full in cleared funds for the Goods plus any applicable Transaction Taxes. The Buyer shall maintain all Goods which have been delivered but for which the Seller has not been paid in full in a separate location, marked by clear and prominent signage disclosing the Seller’s retained interest in the Goods.
9.3 Seller shall have and shall retain a purchase money security interest in the Goods and all proceeds thereof (the Collateral) until the Seller has received payment in full therefor. If the Buyer breaches the terms of the Contract, the Seller shall have all the rights and remedies of a secured creditor under the Uniform Commercial Code (UCC). The Buyer agrees to execute and deliver to the Seller, at the Seller’s request, UCC financing statements, continuation statements, and any and all other documents that the Seller may reasonably request, and shall take such other actions as may be required to assist the Seller in perfecting, recording and protecting the Seller’s security interest in the Collateral.
9.4 The Buyer shall not pledge or in any way charge by way of security for anyindebtedness any of the Goods which are the property of the Seller. Without prejudice to the other rights of the Seller, if the Buyer does so all sums whatsoever owing by the Buyer to the Seller shall immediately become due and payable.
10. Remedies of the Buyer and Limitation of the Seller’s Liability
10.1 The restrictions on liability in this Section 10 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, breach of statutory duty, restitution or otherwise.
10.2 Nothing in the Contract limits any liability for fraud, gross negligence, intentional acts, fraudulent misrepresentation or any other liability which cannot legally be limited or excluded under applicable law.
10.3 Subject to Section 10.2 THE SELLER’S TOTAL LIABILITY TO BUYER UNDER OR IN RELATION TO A CONTRACT, ITS PERFORMANCE AND NON-PERFORMANCE, SHALL NOT EXCEED THE PRICE OF THE GOODS COVERED BY THE APPLICABLE ORDER.
10.5 TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SELLER SHALL HAVE NO LIABILITY FOR: LOSS OF PROFITS; LOSS OF SALES, BUSINESS OR REVENUE; LOSS OF CONTRACTS; LOSS OF OPPORTUNITY; LOSS OF ANTICIPATED SAVINGS; LOSS OF OR DAMAGE TO GOODWILL OR REPUTATION; AND ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE LOSS, DAMAGE AND/OR EXPENSE.
10.6 This Section 10 shall survive the expiration, fulfilment, or termination of the Contract for any reason.
11. Insolvency or other default of the Buyer
Seller may cancel the Contract and exercise any other right or remedy under the Contract, in whole or in part if: (a) the Buyer fails to make payment for the Goods in accordance with the Contract or commits any other breach thereof; (ii) the Buyer if insolvent;
(iii) the Buyer calls a meeting of its creditors, or makes an assignment for the benefit of its creditors; (iii) a receiver or trustee is appointed in respect of any of the Buyer’s property; (iv) any bankruptcy, insolvency, dissolution, liquidation or winding-up proceedings are commenced in relation to the Buyer; or (v) the Buyer seeks any protection or moratorium from creditors, In the alternative, the Seller may in its absolute discretion and without prejudice to any other rights which it may have: (a) suspend all future delivery of Goods to the Buyer and/or terminate the Contract without liability and its part; and/or exercise any of its rights pursuant to Section 3.6.
12. Lien, Set Off and Counter Claim
12.1 The Buyer may not withhold payment of any invoice or any amount due to the Seller by reason of any right to set off or counter claim which the Buyer may have or allege to have or for any reason whatever.
12.2 To the maximum extent permitted by law the Seller shall be entitled to a general lien on all goods of the Buyer in the Seller’s possession (including goods of the Buyer which have been paid for) for the unpaid Price of all Goods sold to the Buyer by the Seller under any Contract.
13. No Reliance on Installation Guidance
Any installation advice provided verbally or outlined in technical literature provided by the Seller or any of its group companies is intended as a guide for information purposes only and is not intended to replace sound engineering practice and judgment and should not be relied upon for that purpose. The Seller makes no warranty of any kind, either expressed or implied, as to the accuracy, completeness or the contents of these guide specifications. The Seller assumes no liability with respect to the provision or use of these guide specifications, nor shall any legal relationship be created by, or arise from, the provision of such specifications. The Seller shall not be responsible under any legal theory to any third party for any direct, indirect or consequential damages of any kind, arising from the use of these guide specifications. The specifier, architect, engineer or design professional or contractor for a particular project bears the sole responsibility for the preparation and approval of the specifications and determining their suitability for a particular project or application.
14. Governing Law and Dispute Resolution
14.1 The construction, interpretation, and performance of the Contract, and any disputes arising hereunder, shall be determined in accordance with the laws of the State of Texas (but not including any of their conflicts-of-law principles or rules which would direct or refer to the laws of another jurisdiction). The state and federal courts situated in Houston, Harris County, Texas shall have exclusive jurisdiction of any disputes arising under or in relation to these Conditions, and the Parties consent to jurisdiction and venue in a court of competent jurisdiction in Harris County, Texas. These conditions and the
transactions governed hereby shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods, the application of which is expressly excluded.
14.2 In the event of any controversy, claim or dispute between the parties hereto, arising out of or relating to these Conditions or the breach thereof, the prevailing party shall be entitled to recover from the other party reasonable expenses, attorney’s fees, and costs.
15. General Provisions
15.1 Unless it expressly states otherwise, the Contract does not give rise to any rights to any person other than the Seller and the Buyer to enforce any term of the Contract.
15.2 Seller’s supply of Goods does not expressly, or by implication, grant Buyer any right or license under any patent, copyright or trade mark of the Seller. If the Goods, in the form delivered by the Seller, are held by a final decision of a court of competent jurisdiction in the USA to infringe a patent, the Buyer shall give the Seller prompt written notice thereof and the Seller, at its option and discretion, shall either procure for the Buyer the right to continue to use, and (where the Buyer is an authorised reseller) resell, the Goods within the USA; replace the infringing Goods with non-infringing Goods, or accept
a return of the infringing Goods for a refund of the Price paid by the Buyer. The foregoing states the entire liability of the Seller with regard to any claim of patent infringement.
15.3 Any notice required to be served pursuant to these Conditions shall be in writing and served either by: first class pre-paid mail; by hand; by commercial courier; or by email. Notice to the Seller must be sent to the Seller’s principal place of business as set out at the head of these Conditions or such other address as the Seller from time to time may notify to the Buyer, and notices to the Buyer must be given at the Buyer’s principal place of business. Any email address set out in the Order may be used for such purpose.
15.4 No waiver or forbearance by the Seller (whether express or implied) in enforcing any of its rights under the Contract shall prejudice its rights to do so in the future.
15.5 No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.6 The Seller may assign, transfer, charge, mortgage, delegate, license or sub contract all or any part of its rights and obligations under the Contract without the Buyer’s consent.
15.7 The Buyer may not assign, transfer, charge, mortgage, delegate, license or sub contract all or any part of its rights and obligations under the Contract without the Seller’s consent.
15.8 The parties are independent contractors. The Contract shall not constitute an agency, joint venture or partnership of any kind.
15.9 The Buyer’s accept of the Contract Documents shall constitute the Buyer’s representation and warranty that it has obtained all necessary approvals, licenses and permits required from any governmental authority in the USA with respect to the use or resale of the Goods within the USA.
15.10 All Goods purchased are for the Buyer’s sole use unless the Buyer is separately authorised in the Contract to resell the Goods. Any such resale authorisation shall be subject to such separate terms and conditions as are stipulated by the Seller therein. Unless otherwise agreed in writing, all Goods supplied are for use and resale within the USA only and may not be exported, and are not authorised for resale or supply, to any location outside of the USA.
15.11 The Seller may cancel the Contract at any time before the Goods are delivered by giving written notice to the Buyer. On giving written notice the Seller shall promptly repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatever arising from such cancellation.
15.12 The Seller shall not be in breach of the Contract nor liable for any delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from any event, circumstance or cause beyond the Seller’s reasonable control including any flood, fire, earthquake, interruption to power or other utilities, epidemic, pandemic, war, act of terrorism, civil disturbance, government curfew or labour disputes (not being one related only to the Seller’s employees). In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed.
15.11 All headings are for ease of reference only and shall not affect the construction of these Conditions.
15.13 Any provision in the Contract which is or may be void, illegal or unenforceable shall to the extent of such invalidity, illegality or unenforceability be deemed to be severed and deleted but that shall not affect the validity and enforceability of any other provision of the Contract.