ITW Industrial Components UK – Conditions of Sale
These Conditions apply to all sales of goods by ITW Industrial Components Ltd (“Seller”) Seller to any purchaser (“Buyer”) and shall apply in place of and prevail over any terms and conditions contained or referred to in the Buyer’s order or in correspondence or elsewhere or implied by trade custom practice or course of dealing unless specifically agreed to in writing by a director of the Seller and any purported provisions to the contrary are hereby excluded or extinguished.
2. Quotations and Acceptance
a. All quotations are valid for a period of 60 days only.
b. An order once accepted and acknowledged by Seller, may not be cancelled without written agreement from the Seller. The Buyer shall indemnify Seller in full against all loss (including loss of profit), costs, (including labour and Materials) and damages incurred by Seller, relating to order cancellation.
c. A quotation by the Seller does not constitute an offer and the Seller reserves the right to withdraw or revise the same at any time prior to the Seller’s acceptance of the Buyer’s order.
d. The Seller’s acceptance of the Buyer’s order shall be effective only where such acceptance is made on the Seller’s printed Order Acceptance form duly counter-signed by an authorised representative of the Seller.
e. Confirmation by the Seller’s head office is required for all quotations made and all orders and contracts accepted by the Seller’s representatives or agent.
a. The prices payable for the goods shall be those contained in the Seller’s list prices, or contained within the appropriate quotation therefore current at the time of despatch.
b. The Seller shall have the right at any time to withdraw any discount from its normal prices and/or to revise prices to take into account increases in costs including (without limitation) costs of any goods, materials, carriage, labour or overheads, the increase or imposition of any tax duty or other levy and any variation in exchange rates. Prices are subject to minimum order value listed in Seller’s current price list.
c. The Seller reserves the right to amend clerical or typographical errors.
d. Unless otherwise specified VAT and any other tax or duties payable by the Buyer shall be added to the price.
e. All Prices are ex works unless otherwise agreed in writing by seller to buyer.
f. Any goods for export will be packed in good quality export cases at the Buyer’s cost. Any special packing requirements of the Buyer will attract an additional charge. Packing for parcel post or air freight will be in an appropriately economic manner using cartons and/or parcels.
4. Terms of Payment
a. Payment of Invoices shall unless otherwise agreed in writing be made in full without any deduction or set-off within 30 days of invoice.
b. Any extension of credit allowed to the Buyer may be changed or withdrawn at any time.
c. If in the opinion of the Seller the credit worthiness of the Buyer shall have deteriorated prior to delivery the Seller may require full or partial payment of the price prior to delivery or the provision of security for payment by the Buyer in a form acceptable to the Seller.
a. Delivery dates mentioned in any quotation, acknowledgement of order or elsewhere are approximate only and not of any contractual effect and the Seller shall not be under any liability to the Buyer in respect of any failure to deliver on any particular date or dates.
b. Delivery shall be at the Seller’s premises unless otherwise stipulated or agreed by the Seller. The Seller reserves the right to charge for delivery other than at its premises.
c. Unless otherwise expressly agreed, the Seller may effect delivery in one or more instalments. Where delivery is effected by instalments each instalment shall be treated as a separate contract.
d. The Seller reserves the right to cancel or suspend any orders outstanding on their books, or any other unfulfilled obligations which have not been discharged for any cause over which the Seller has no control, 12 months after such orders have been placed.
Risk shall pass on delivery.
a. All goods are supplied to the Buyer by the Seller on the following terms:
i. The goods shall remain the sole and absolute property of the Seller as legal and equitable owner until such time as the Buyer shall have paid to the Seller the agreed price.
ii. Until such payment the Buyer shall be in possession of the goods solely as bailee for the Seller and in a fiduciary capacity and shall store the goods in such a way as to enable them to be identified as the property of the Seller.
iii. The Seller reserves the immediate right of repossession of any such goods to which it has retained title as aforesaid and thereafter to resell the same and for this purpose the Buyer hereby grants an irrevocable right and licence to the Seller’s servants and agents to enter upon all or any of its premises with or without vehicles during normal business hours. This right shall continue to subsist notwithstanding the termination of the contract for any reason and is without prejudice to any accrued rights of the Seller thereunder or otherwise.
iv. Subject to the terms hereof, the Buyer is licensed by the Seller to process the said goods in such fashion as it may and/or incorporate them in or with any other product or products subject to the express condition that the new product or products of any other chattel whatsoever containing any part of the said goods shall become the sole and exclusive property of the Seller and shall be separately stored and marked so as to be identifiable as being made from or with the goods the property of the Seller.
a. The Seller shall not be liable to the Buyer:
i. For shortages in quantity delivered unless the Buyer notifies the Seller of any claim for short delivery within 3 days of receipt of goods.
ii. For damage to or loss of goods or any part thereof in transit (where the goods are carried by the Seller’s own transport or by a carrier on behalf of the Seller) unless the Buyer shall notify the Seller of any such claim within 10 days of date of invoice or the scheduled date of delivery whichever shall be the earlier.
iii. For defects in the goods caused by fair wear and tear, abnormal conditions of storage or use or any act, neglect or default of the Buyer or of any third party.
iv. For other defects in the goods unless notified to the Seller within 1 month of receipt of the goods by the Buyer or where the defect would not be apparent on reasonable inspection within 6 months of delivery.
v. Where liability is accepted by the Seller under paragraph a, the Seller’s only obligation shall be at its option to make good any shortage or non delivery and/or as appropriate to replace or repair any goods found to be damaged or defective and/or to refund the cost of such goods to the Buyer.
vi. The Seller’s aggregated liability to the Buyer whether for negligence, breach of contract, misrepresentation or otherwise shall in no circumstances exceed the cost of the defective, damaged or undelivered goods which give rise to such liability as determined by net price invoiced to the Buyer in respect of any occurrence or series of occurrences.
vii. Faulty or rejected material will be credited only after return to and receipt of such material at Seller’s premises, in accordance with Seller RMA process. Proof of despatch will not be acceptable as proof of delivery.
viii. Subject to the foregoing all conditions, warranties and representations expressed or implied by statute, common law or otherwise in relation to the goods are hereby excluded and the Seller shall be under no liability to the Buyer for any loss incidental or consequential damage or injury direct or indirect resulting from defective material, faulty workmanship or otherwise howsoever arising and whether or not caused by the negligence of the Seller, its employees or agents SAVE THAT the Seller shall indemnify and hold the Buyer harmless to and from any damages, claims and demands
arising out of the death or injury of any person, or damage to any property resulting from the sole negligence of the Seller.
a) The Buyer shall meet the cost of any special packaging requested by the Buyer or any packaging rendered necessary by delivery by any means other than the Seller’s normal means of delivery.
b) The Seller shall be entitled to invoice the Buyer for the cost of all pallets and other returnable packaging materials unless the same are returned to the Seller in good condition carriage paid within 30 days of the date of delivery.
10. Licences and Consents
If any licence or consent of any government or other authority shall be required for the acquisition, carriage or use of the goods by the Buyer, the Buyer shall obtain the same at its own expense and if necessary produce evidence of the same to the Seller on demand. Failure so to do shall not entitle the Buyer to withhold or delay payment of the price. Any additional expenses or charges incurred by the Seller resulting from such failure shall be for the Buyer’s account.
11. Force Majeure
a) The Seller shall not be liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of goods by the Seller being prevented, hindered, delayed or rendered uneconomic by reason of circumstances or events beyond the Seller’s reasonable control including but not limited to Act of God, war, riot, strike, lock-out, trade dispute or labour disturbance, accident, breakdown of plant or machinery, fire, flood storm, difficulty or increased expense in obtaining workmen, materials or transport or other circumstances affecting the supply of the goods or of raw materials therefor by the Seller’s normal means or the delivery of the goods by the Seller’s normal route or means of delivery.
b) If due to such circumstances or events the Seller has insufficient stocks to meet all its commitments the Seller may apportion available stocks between its customers at its sole discretion.
12. Insolvency and Default
If the Buyer enters into a deed of arrangements or commits an act of bankruptcy or compounds with his creditors or if a receiving order is made against him or if (being a company) an order is made or a resolution is passed for the winding up of the Buyer (otherwise than for the purpose of amalgamation or reconstruction previously approved in writing by the Seller) or if a receiver is appointed of any of the Buyer’s assets or undertaking if circumstances arise which entitle the Court or a creditor to appoint a receiver or manager or which entitle the Court to make a winding-up order or if the Buyer takes or suffers any similar or analogous action in consequence of debt or commits any breach of this or any other contract between the Seller and the Buyer the Seller may without prejudice to any of its other rights stop any goods in transit and/or suspend further deliveries and/or determine the rights of the Buyer under Condition 7 and/or by notice in writing to the Buyer determine the contract.
Failure by the Seller to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
a) ITW warrants that goods will correspond with their specification at the time of delivery and will be free from defects in materials or workmanship for 12 months from product date code (“Warranty Period”).
i. The above warranty does not apply to any defect:
ii. Arising from any drawing design or specification supplied by the Buyer.
iii. Arising from fair wear and tear, improper use, storage, installation or maintenance.
iv. Arising from failure to follow Seller instructions / guidelines (whether oral or in writing).
v. Arising from alterations or repairs to the goods without Seller approval.
vi. Which is not immediately notified in writing to Seller.
vii. If any sum owing by the Buyer to Seller has not been paid;
viii. In items not manufactured by Seller, when the Buyer shall only be entitled to the benefit of any such warranty as is given to Seller by the manufacturer.
b) In the event of a breach of the warranties set forth above (the “Warranties”), Seller, at its discretion and as Seller’s sole liability and Buyer’s sole remedy, will replace, repair, or refund the goods (or the part in question) returned to Seller’ factory, carriage paid, which conforms to the Seller’s RMA warranty criteria, provide that (i) during the Warranty Period Seller is promptly notified in writing upon discovery of such failure with a detailed explanation of any alleged deficiencies; (ii) Seller is given a reasonable opportunity to investigate all claims; and (iii) Seller’s examination of such goods confirms the alleged deficiencies and that the deficiencies were not caused by accident,
misuse, neglect, normal wear and tear, improper installation, unauthorized alteration or repair or improper testing.
c) The warranty on replacements or repairs shall be to the end of the original warranty period.
d) Repairs and replacements will be delivered to the nearest port or airport CIF Incoterms 2010.
e) THE FOREGOING WARRANTY IS IN LIEU OF AND EXLUDES ALL OTHER WARRANTIES NOT EXPRESSLY SET FORTH HEREIN WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.
All information furnished or made available by Seller to Buyer in connection with the subject matter hereof shall be held in confidence by Buyer. Buyer agrees not to use (directly or indirectly), or disclose to others, such information without Seller’s prior written consent. The obligations in this section will not apply to any information that: (a) at the time of disclosure was or thereafter becomes generally available to the public by publication or otherwise through no breach by Buyer of any obligation herein; (b) Buyer can show by written records was in Buyer’s possession prior to disclosure by Seller; or (c) is legally made available to Buyer by or through a third party having no direct or indirect confidentiality obligation to Seller with respect to such information.
16. Intellectual Property
i. All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights and other information or intellectual property disclosed or otherwise provided to Buyer by Seller and all rights therein (collectively, “Intellectual Property”) will remain the property of Seller and will be kept confidential by Buyer in accordance with these Terms. Buyer has no claim to, nor ownership interest in, any Intellectual Property, and such information, in whatever form and any copies thereof, shall be promptly returned to Seller upon request from Seller. Buyer acknowledges that no license or rights of any sort are granted to Buyer hereunder in respect of any Intellectual Property, other than the limited right to use Seller’s goods purchased from Seller.
ii. Except as set forth below, Seller agrees to defend and indemnify Buyer against any claims, costs, damages, liability and expenses resulting from actual patent, trademark or copyright infringement, misappropriation of confidential information, or violation of any other Intellectual Property right, domestic or foreign that may arise from the sale of Seller’s proprietary goods to Buyer (each, a “Claim”); provided, however, (a) Buyer supplies Seller written notice of such Claim immediately after the Buyer has notice of such Claim, (b) Buyer cooperates with Seller in the defence and settlement of such Claim; and (c) Buyer allows Seller the right to defend and settle such Claim at Seller’s expense If a suit or claim results in any injunction or order that would prevent Seller from supplying any part or goods falling under
the Agreement, or if the result of such a suit or claim would, in the reasonable opinion of Seller, otherwise cause Seller to be unable to supply such parts or goods, Seller may do one or more of the following: (i) secure an appropriate license to permit Seller to continue supplying those parts or goods; (ii) modify the appropriate part or goods so that it becomes non-infringing; (iii) replace the appropriate part or goods with a non-infringing but practically equivalent part or goods; or (iv) if Seller cannot reasonably accomplish the actions specified in subsections (i) – (iii), then in Seller’s sole discretion, Seller may discontinue selling the part or goods without any further liability to Buyer. Notwithstanding the foregoing, Seller shall have no liability or duty to defend and indemnify Buyer against any Claim relating to: (1) the use of any part or goods, (2) the combination of any part or goods with any other part or product not supplied by Seller, or (3) any part or goods or process that is designed or specified by Buyer.
iii. If any goods to be supplied by the Seller are in accordance with specifications or patterns supplied by the Buyer, the Buyer will indemnify the Seller against all damages, penalties, costs and expenses to which the Seller may become liable or which they may incur through anything done by the Seller in execution of the order being alleged to involve an infringement of the patent, registered design, trademark, or copyright.
Any notice hereunder shall be deemed to have been duly given if sent by prepaid first class post, fax or email to the party concerned at its last known address. Notices sent by first class post shall be deemed to have been given seven days after despatch and notices sent by fax or email shall be deemed to have been given on the date of despatch.
18. Governing Law
The contract shall be governed by and construed in accordance with the Laws of England and the parties hereby submit to the jurisdiction of the Courts of England.
SPECIAL CONDITIONS: All prices exclusive of VAT, special deliveries e.g. Red Star or Securicor, at Customer’s expense. A handling charge of 12% or minimum £25 will be made on goods incorrectly ordered and returned for credit. To avoid possible duplication please mark written orders, previously placed by telephone, with the word CONFIRMATION. The normal credit handling charge will be applied on
duplicated orders as a result of non-compliance with this request.