a. In these Conditions: "Buyer" means the person, firm, body or company who buys the Goods under the Contract.
"Company" means ATM Parts Co Ltd, (Part of the Cennox Group) whose registered office is at:11 & 12 Admiralty Way,
(Company Number 2848103)
"Conditions" means the standard terms and conditions of sale set out in this document.
"Consumable" means a New Original or New Equivalent part which becomes worn out by regular use and requires regular replacement.
"Contract" means the contract for the purchase and sale of the Goods.
"Goods" means the parts supplied by the Company which include New Original, New Equivalent, Refurbished, and Non-Refurbished parts.
"Intellectual Property" means all inventions, patents, utility models, designs (both registered or unregistered and including rights relating to semi-conductor topologies), database rights, copyright and trade marks (both registered or unregistered), together with all rights to the grant of and applications for the same and including all similar or analogous rights and all other rights in the nature of intellectual and industrial property throughout the world and all future rights of such nature.
"New Equivalent" means a part which is not New Original but which performs to at least the same standard as New Original for the same purpose.
"New Original" means a part sourced from the original manufacturer or the original manufacturer's supplier.
"Non-Refurbished" means a part which is not new and is supplied as an "as is" part which has not been reprocessed by the Company.
"Refurbished" means a second hand part which has been reprocessed either to the standard level of refurbishment of the Company or to a standard which is agreed in Writing between the Company and the Buyer.
"Working Day" means the hours between 0900 hours and 1700 hours on any day of the week excluding Saturdays, Sundays and public holidays.
"Writing" includes facsimile transmission.
a. The Company shall sell the Goods to the Buyer in accordance with any:
i. written quote of the Company which is accepted by the Buyer; or
ii. written order of the Buyer which is accepted by the Company on the basis of these Conditions.
b. These Conditions shall govern the Contract to the exclusion of any other terms or conditions.
c. Any variation to these Conditions must be agreed in Writing between the Buyer and the Company.
d. Any advice or recommendation relating to the Goods given by any representative of the Company will not be binding on the Company unless confirmed by the Company in Writing.
3. ORDERS AND QUOTES
a. In accepting a quote or placing an order for the Goods the Buyer acknowledges that all information and specifications relating to the Goods are approximate only.
b. The Goods are sold by part number together with description. The part number is referenced to the original suppliers number for a part even if the part is not New Original.
c. The Company will inform the Buyer if the Goods supplied are not New Original parts.
d. The Company reserves the right to supply New Equivalent or Refurbished parts where New Original parts have been ordered.
e. Any error in any quote, sales literature or other document issued by the Company may be corrected without any liability to the Company.
f. All orders submitted by the Buyer must be accurate and made in good time to allow the Company to perform its obligations under the Contract.
g. The Company may make any changes in the specification of the Goods to conform with any relevant statutory or regulatory requirements or, where the Goods are to be supplied to the Company's specification, which do not materially affect their quality or performance.
a. The price of the Goods shall be the Company's quoted price. Subject to Clause 4.2, quotes are valid as specified in the quote or if no period is specified for 7 days after which they may be altered by the Company without prior notice to the Buyer.
b. The Company may by giving notice to the Buyer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of supplying the Goods which is due to any factor beyond the control of the Company.
c. The price of the Goods does not, unless otherwise stated in the quote, include delivery and accordingly all prices are ex works the Company's premises. The Buyer will pay the Company's charges for transport and insurance.
d. The price for the Goods is exclusive of value added tax, import duties, customs clearance charges and local charges or taxes, for which the Buyer shall also be directly responsible.
5. PAYMENT TERMS
a. Subject to clause 5.3 the Company may invoice the Buyer for all sums due under the Contract when the Company dispatches the Goods or advises the Buyer of the availability of the Goods.
b. Subject to clause 5.3 the Buyer shall pay the Company's invoices in full without deduction or set-off within 30 days of the date of invoice or as specified in the quote. Time for payment shall be of the essence of the Contract
c. The Company reserves the right to invoice the Buyer and to receive payment in full for an invoice before the Goods are dispatched.
d. If the Buyer fails to pay on the due date then (notwithstanding that delivery may not have taken place and that title to the Goods shall not have passed to the Buyer) the Company may: sue the Buyer to recover the sums due to it; d.i - terminate the Contract;
d.ii - suspend any further deliveries to the Buyer until all debts are paid in full;
d.iii - charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 18 per cent per year; and
d.iv - by the Company giving notice in Writing to the Buyer, cancel any other contract between the Buyer and the Company.
a. The place for delivery shall be as reasonably requested in the Buyer's order.
b. Any dates for delivery are approximate only and the Company shall not be liable for the consequences of any delay in delivery. Time for delivery shall not be of the essence. The Goods may be delivered early by the Company. The Company also reserves the right to deliver part orders.
c. Where specified in the attachment to the quote, delivery will take place in installments.
d. If the Buyer does not take delivery of the Goods or give the Company adequate delivery instructions then the Company may store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage and any attempt at delivery of the Goods.
e. If the Buyer fails to provide delivery instructions or adequate delivery instructions in respect of an order the Company reserves the right to reallocate the Goods to another order without prior notice to the Buyer.
f. The Company shall not owe the Buyer any duty of care under Clause 6.4 and shall not be liable to the Buyer for any loss, damage or deterioration of the Goods during storage.
g. If there is short delivery the Buyer shall inform the Company in Writing within 10 Working Days from the date of delivery and if the Buyer does not do so then the Company shall not be responsible for any loss or damage suffered by the Buyer as a result of the short delivery.
h. If there is short delivery, the Company's liability shall be limited to either the price of the Goods not delivered or at the Company's discretion to supplying the Goods not delivered.
a. Risk of damage or loss of the Goods shall pass to the Buyer on delivery or, if the Buyer fails to take delivery of the Goods, at the time when the Company has tried to despatch the Goods.
8. RETENTION OF TITLE
a. Title in the Goods shall be retained by the Company until all sums due on any account from the Buyer to the Company have been received by the Company. If any indebtedness on any running account between the Company and the Buyer is reduced to nil, title shall not pass in any Goods still held by the Buyer at the time of any later default in payment by the Buyer.
b. Until title passes to the Buyer, the Buyer shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected, insured and identified as the Company's property. If the Goods are destroyed before the Buyer pays in full for any of the Goods, the Buyer shall hold the proceeds of any insurance claim relating to the Goods as trustee for the Company and shall pay the proceeds to the Company immediately.
c. If the Goods are mixed or installed with any other products or materials, the Buyer shall have no interest in the resulting product ("the Product"). The Company shall be the owner of the Product, or (in the case of products or materials contributed by a third party) the Company shall be joint owner of the Product with the third party to the extent of the parties' contributions to the Product. The Buyer shall treat the Product as if it were the Goods.
d. Until ownership in the Goods passes to the Buyer, the Company may require the Buyer to deliver the Goods to the Company and, if the Buyer fails to do so immediately, the Company may enter any premises where the Goods are reasonably thought to be stored and repossess the Goods.
e. If the Company recovers the Goods it may resell the Goods. If the proceeds of sale are more than the amount due to the Company from the Buyer the Company may use the balance to pay the costs of taking possession and selling the Goods. If on resale the proceeds of sale are less than the amount due to the Company, the Company may recover the shortfall from the Buyer.
f. The Buyer shall not assign, factor or charge any of the Goods or any invoice for the Goods which remain the property of the Company. If the Buyer does so then all moneys owing by the Buyer to the Company shall become due and payable immediately.
g. The Buyer shall not be deemed to be the Company's agent for any purpose other than to give effect to this clause 8.
9. WARRANTY AND LIABILITY
a. Nothing in this clause 9 shall exclude the Company's liability for death or personal injury caused by its negligence.
b. If the Goods are:
i. a New Equivalent or Refurbised part, the Company warrants that the part will be free from defects for a period of 3 months from the date of delivery;
ii. a New Original part, the Company will give warranties to the Buyer in accordance with those given by the supplier of the New Original part;
iii. a Consumable and/or Non-Refurbished part, the Company will give no warranties.
c. If the Company is in breach of the warranty set out in clause 9.2, the Buyer shall advise the Company in Writing immediately and in any case not later than 10 Working Days from the date of discovery of the defect.
d. On receiving a notice under clause 9.3, the Company may, at its sole option:
i. repair the Goods;
ii. replace all or any part of the defective Goods; or
iii. refund the price of those Goods which are defective.
e. The warranty contained in clause 9.2 shall be the extent of the Company's liability for defective Goods.
f. Where all or any part of the Goods is manufactured by someone other than the Company, the Company shall use reasonable endeavours to transfer to the Buyer the benefit of any warranty or guarantee given by the Company. Such endeavours to transfer represents the Company’s entire liability for defects or intellectual property infringement in that part.
g. The Company will not be liable for any of the following losses which may arise by reason of any breach of the Contract or any implied warranty, condition or other term, any representation or any duty of any kind imposed on the Company by operation of law:
i. any loss of anticipated profits or expected future business;
ii. damage to reputation or goodwill; iii. any damages costs or expenses payable by the Buyer to any third party;
9.7.4. loss of any order or contract; or
9.7.5. any consequential loss of any kind.
h. Unless otherwise provided in these Conditions, and subject to clause 9.7, the liability of the Company for breach of any express or implied term of these Conditions shall be limited to the reasonable cost of remedying any defect in the Goods or other matter constituting a breach and in no circumstances shall the Company's liability exceed the total amount paid by the Buyer to the Company under the Contract. If, notwithstanding the provisions of this clause 9, liability attaches to the Company in no circumstances shall the Company's liability to the Buyer exceed £20,000
i. Without prejudice to any other provision of this clause 9, the Company will not be in breach of the terms of the Contract for any delay in performing, or failure to perform, its obligations under the Contract if that delay or failure was due to any cause or circumstance beyond the Company's reasonable control including and not limited to delay in or failure to supply Goods caused by the delay or failure of a manufacturer or its supplier to supply parts to the Company.
9.10.1. All returns must be authorised in advance and Cennox ATM Parts Ltd. will issue an RMA (Return Material Authorisation) number that must be displayed on the accompanying shipping documentation/box. Any parts returned without an RMA will not be accepted. Shipping instructions will be issued at the time of the RMA.
9.10.2. Parts returned under RMA will be assessed on receipt for the defect reported and the customer informed of the findings as soon as practically possible.
9.10.3. Clause 9.2 of our Terms and Conditions will apply for all warranty claims.
9.10.4. If no fault is found then the parts will be returned to the customer at their expense. Alternatively a 25% restocking fee will apply. Goods that have been special ordered will not be returnable.
a. The Buyer shall indemnify the Company against any loss or damage suffered by the Company as a result of any claims brought against the Company by any third party for:
i. any loss, injury or damage caused by the Goods or their use;
ii. any loss, injury or damage in any way connected with this Contract provided that this Clause will not require the Buyer to indemnify the Company against any liability for the Company's own negligence.
11. INTELLECTUAL PROPERTY AND INDEMNITY
a. The Buyer shall have no rights in respect of any Intellectual Property owned or used by the Company or of the associated goodwill which protects or relates to the Goods, and the Buyer hereby acknowledges that it shall not acquire any such rights and that all such rights and goodwill are, and shall remain, vested in the Company or its licensors (as appropriate).
b. The buyer shall not reverse engineer any Goods and if the buyer sells or otherwise disposes of the Goods or any part thereof to a third party the Buyer shall impose a similar obligation on the third party together with an obligation on the third party and any subsequent parties to impose similar obligations in the case of any subsequent sales or disposals of the Goods or any part thereof.
c. On termination of the Contract howsoever caused in respect of all Goods, or on disposal of the Goods or any part thereof by the Buyer in respect of all such disposed Goods or parts thereof, the Buyer shall: remove and, at the option of the Company, securely destroy or return all such Goods or parts thereof which embody any Intellectual Property of the Company or its licensors; or ensure that any third party to whom Goods are disposed enters into binding obligations concerning the Intellectual Property of the Company and its licensors no less onerous that the terms set out in these Conditions.
d. The Buyer shall indemnify the Company against all liability, losses, costs and expenses incurred by the Company by failure of the Buyer to fulfill its obligations under this Clause 11.
e. Notwithstanding any provision of these Conditions to the contrary, the provisions of this Clause 11 shall continue in force and effect after expiry or termination of the contract howsoever caused.
12. EXPORT TERMS
a. In these Conditions 'Incoterms' means the international rules for the interpretation of trade terms of the International Chambers of Commerce in force on the date when the Contract is made. Unless the context otherwise requires, any expression which is defined in Incoterms shall have the same meaning in these Conditions, but if there is any conflict between Incoterms and these Conditions, these Conditions shall prevail.
b. Where the Goods are supplied for export from the United Kingdom, if the provisions of this Clause 12 are inconsistent with any other provision of the these Conditions, the provisions of this Clause 12 shall prevail.
c. The Buyer shall be responsible for complying with any legislation or regulation governing the importation of the Goods into the country of destination.
d. The Buyer shall where applicable:
i. not either directly or indirectly export the Goods or any product incorporating the Goods without first obtaining a license to export or re-export from the United Kingdom Government and/or the United States Office of Export Administration (the "OEA");
ii. comply with the export regulations of the United Kingdom Government and/or the OEA.
e. The Goods shall be delivered ex works the Company's premises unless specified in the quote.
f. The Buyer shall be responsible for inspecting and testing the Goods at the Company's premises before shipment. The Company shall have no liability for any claim made after shipment for any defect in the Goods which would be apparent on inspection, or for any damage during transit.
g. Payment to the Company shall be made by wire transfer, cheque or an equivalent means of payment, or as agreed between the Company and the Buyer.
a. The Company may terminate this Contract or any other contract between the parties and may cancel or suspend future deliveries (under this Contract or any other contract) if the Buyer:
i. is in breach of these Conditions or any other contract between the parties; or
ii. has a petition presented for its winding up or for an administration order to be made in respect of it; has a receiver or administrative receiver appointed over it or any of its assets; resolves to wind itself up (other than for a solvent reorganisation); has a bankruptcy order made against it or any of its partners; or enters, or proposes to enter into a composition or voluntary arrangement with its creditors;
iii. is subject to equivalent proceedings to any of the circumstances detailed at 13.1.2 above in the governing jurisdiction or country of residence of the Buyer.
b. On termination, the Buyer shall pay to the Company all costs, expenses (including legal and other fees incurred), arrears, charges or other payments arising in respect of the Goods under the contract.
c. Termination shall not affect either party's accrued rights under the Contract.
a. The Company is the holding company of ATM Parts Co Inc which is based in the US and the Company may perform its obligations or exercise its rights under the Contract through any other member of its group.
15. EXHIBITIONS, WITHDRAWAL AND USE OF GOODS
a. The Company may withdraw the sale or distribution of any goods produced by or generally supplied by the Company without prior notice, or liability, to the Buyer.
b. If the Company provides the Buyer with information about the use for which the Goods are designed and about any conditions necessary to ensure that the Goods will be safe then the Buyer shall use the Goods accordingly. c. The Buyer may not exhibit the Goods at any show, display, exhibition or competition without the Company's prior consent in Writing.
a. Any notice required under these Conditions shall be in Writing addressed to the other party at its registered office or principal place of business or any other address notified by the receiving party to the party giving the notice. Any notice shall be deemed to be served:
i. if sent by pre-paid first class post to the party to whom it is given, on the second Working Day after posting where the Buyer is based in the UK or on the seventh Working Day after posting where the Buyer is based outside the UK; or
ii. if sent by fax to the recipient's fax number at the date and time given on the sender's transmission acknowledgement slip or (in the case of manifest error or loss of the slip) on receipt.
b. If any of these Conditions is held by any competent authority to be unlawful, invalid or unenforceable in whole or in part then the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby and shall continue to be valid and enforceable to the fullest extent permitted by law.
c. The Contract and these Conditions shall be under English law and the parties submit to the exclusive jurisdiction of the English Courts if there are any disputes between them of any kind.
d. The Buyer shall not transfer, assign or sub-contract its obligations under the Contract without the Company's prior consent in Writing.
e. Failure or neglect by the Company to enforce at any time any of these Conditions shall not be a waiver of the Company's rights and it shall not affect the validity of the whole or any part of these Conditions or prejudice the Company's right to take subsequent action.