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Caplock
Terms
and Conditions of business
Caplock
Standard terms and conditions for the sale of goods
1 INTERPRETATION
1.1 In these Conditions the following words have the following meanings:
"the Buyer" means, the person(s), firm or company who purchases
the Goods from the Company;
"the Company" means, Caplock, LLC and/or Caplock Trading Company;
"Contract" means, any contract between the Company and the Buyer
for the sale and purchase of Goods,;
"Delivery Point" means, the place where delivery of the Goods
is to take place under condition 4;
"Goods" means, any goods agreed in the Contract to be supplied
to the Buyer by the Company (including any part or parts of them).
"Proprietary Information" means, all and any information, documents,
data and opinions disclosed by the Company or any of its Officers employees
or representatives to the Buyer (or otherwise acquired by the Buyer) including
without limitation commercial, financial or proprietary material, pricing
information, data, know-how, formulae, processes, operating methods and
procedures, results, designs, drawings, specifications, industrial and
or intellectual property, computer programmes or other software and any
other information relating to the technology or business or properties
of the Company and whether in written, electronic, pictorial, visual or
oral form; magnetic, electronic, graphic or digitised format; or disclosed
pursuant to discussions with any of the affiliates, suppliers, officers,
employees, agents, advisors or consultants of the Company and whether
or not marked or indicated as confidential;
1.2 In these Conditions references to any statute or statutory provision
shall, unless the context otherwise requires, be construed as a reference
to that statute or statutory provision as from time to time amended, consolidated,
modified, extended, re-enacted or replaced.
1.3 In these Conditions references to the masculine include the feminine
and the neuter and to the singular include the plural and vice versa as
the context admits or requires.
1.4 In these Conditions headings will not affect the construction of these
Conditions.
2 APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.3 these Conditions are
deemed to form any contract, to the exclusion of all other terms and conditions
(including any terms or conditions which the Buyer purports to apply under
any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions (other than these Conditions) endorsed upon,
delivered with or contained in the Buyer's purchase order, confirmation
of order, specification or other document will form part of the Contract
whether or not in the Contract.
2.3 These Conditions apply to all the Company's sales and any variation
to these Conditions and any representations about the Goods shall have
no effect unless expressly agreed in writing and signed by an Officer
of the Company.
2.4 Each order for Goods by the Buyer from the Company shall be deemed
to be an offer by the Buyer to purchase Goods subject to these Conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the
Company until a written acknowledgement of order is issued by the Company
or (if earlier) the Company delivers the Goods to the Buyer.
2.6 The Buyer must ensure that the terms of its order and any applicable
specification are complete and accurate. In particular failure by the
Buyer to nominate a Delivery Point acceptable to the Company shall mean
that the Delivery Point shall be at or near to the Company's premises.
2.7 Any quotation is given on the basis that no contract will come into
existence until the Company despatches an acknowledgement of order to
the Buyer. Any quotation is valid for a period of 30 days only from its
date, provided that the Company has not previously withdrawn it.
3 DESCRIPTION
3.1 The description of the Goods shall be as set out in the Company's
quotation.
3.2 All descriptive matter, specifications and advertising issued by the
Company and any descriptions or illustrations contained in the Company's
catalogues or brochures are issued or published for the sole purpose of
giving an approximate idea of the Goods described in them. They will not
form part of this Contract.
4 DELIVERY
4.1 Unless otherwise agreed in writing by the Company delivery of the
Goods shall take place at such place as notified in the Company's acknowledgement
of order.
4.2 Any dates specified by the Company for delivery of the Goods are intended
to be an estimate and time for delivery shall not be made of the essence
by notice. If no dates are so specified, delivery will be within a reasonable
time.
4.3 Subject to the other provisions of these Conditions the Company will
not be liable for any loss (including loss of profit), costs, damages,
charges or expenses caused directly or indirectly by any delay in the
delivery of the Goods (even if caused by the Company's negligence), nor
will any delay entitle the Buyer to terminate or rescind the Contract
unless such delay exceeds 180 days.
4.4 If for any reason the Buyer will not accept delivery of any of the
Goods when they are ready for delivery, or the Company is unable to deliver
the Goods on time because the Buyer has not provided appropriate instructions,
documents, licences or authorisations:
4.4.1 risk in the Goods will pass to the Buyer (including for loss or
damage caused by the Company's negligence);
4.4.2 the Goods will be deemed to have been delivered; and
4.4.3 the Company may store the Goods until delivery whereupon the Buyer
will be liable for all related costs and expenses (including without limitation
storage and insurance).
4.5 The Buyer will provide at its expense at the Delivery Point adequate
and appropriate equipment and manual labour for loading the Goods.
4.6 If the Company delivers to the Buyer a quantity of Goods of up to
10% more or less than the quantity specified by the buyer in an order
accepted by the Company the Buyer shall not be entitled to object to or
reject the Goods or any of them by reason of the surplus or shortfall
and shall pay for such goods at the pro rata Contract rate.
4.7 Where the goods are to be delivered in instalments, each delivery
shall constitute a separate contract and failure by the Company to deliver
any one or more of the instalments in accordance with these conditions
or any claim by the Buyer in respect of one or more instalments shall
not entitle the Buyer to treat the Contract as a whole as being repudiated
or to refuse to accept delivery of and make payment in full in respect
of all other instalments.
5 NON-DELIVERY
5.1 The quantity of any consignment of Goods as recorded by the Company,
or an agent of the Company, upon despatch from the Company's place of
business or the place of business of such agent of the Company, shall
be conclusive evidence of the quantity received by the Buyer on delivery
unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods (even
if caused by the Company's negligence) unless written notice is given
to the Company within 14 days of the date when the Goods would in the
ordinary course of events have been received.
5.3 Any liability of the Company for non-delivery of the Goods shall be
to replacing the Goods within a reasonable time or issuing a credit note
at the pro rata Contract rate against any invoice raised for such Goods.
6 RISK/TITLE
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company
has received in full (in cash or cleared funds) all sums due to it in
respect of:
6.2.1 the Goods; and
6.2.2 all other sums which are or which become due to the Company from
the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
6.3.1 hold the Goods on a fiduciary basis as the Company's bailee;
6.3.2 store the Goods (at no cost to the Company) separately from all
other goods of the Buyer or any third party in such a way that they remain
readily identifiable as the Company's property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging
on or relating to the Goods;
6.3.4 maintain the Goods in satisfactory condition insured on the Company's
behalf for their full price against all risks to the reasonable satisfaction
of the Company. On request the Buyer shall produce the policy of insurance
to the Company; and
6.3.5 hold the proceeds of the insurance referred to in condition 6.3.4
on trust for the Company and not mix them with any other money, nor pay
the proceeds into an overdrawn bank account.
6.4 The Buyer may resell the Goods before ownership has passed to it solely
on the following conditions:
6.4.1 any sale shall be effected in the ordinary course of the Buyer's
business at full market value; and
6.4.2 any such sale shall be a sale of the Company's property on the Buyer's
own behalf and the Buyer shall deal as principal when making such a sale.
6.5 The Buyer's right to possession of the Goods shall terminate immediately
if:
6.5.1 the Buyer has a bankruptcy order made against him or makes an arrangement
or composition with his creditors, or otherwise takes the benefit of any
Act for the time being in force for the relief of insolvent debtors, or
(being a body corporate) convenes a meeting of creditors (whether formal
or informal), or enters into liquidation (whether voluntary or compulsory)
except a solvent voluntary liquidation for the purpose only of reconstruction
or amalgamation, or has a receiver and/or manager, administrator or administrative
receiver appointed of its undertaking or any part thereof, or a resolution
is passed or a petition presented to any court for the winding up of the
Buyer or for the granting of an administration order in respect of the
Buyer, or any proceedings are commenced relating to the insolvency or
possible insolvency of the Buyer; or
6.5.2 the Buyer suffers or allows any execution, whether legal or equitable,
to be levied on his/its property or obtained against him/it, or fails
to observe/perform any of his/its obligations under the Contract or any
other contract between the Company and the Buyer, or is unable to pay
its debts within the meaning of federal statutory law contained in Title
11 of the United States Code; or the Buyer ceases to trade; or
6.5.3 the Buyer encumbers or in any way charges any of the Goods.
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding
that ownership of any of the Goods has not passed from the Company.
6.7 The Buyer grants the Company, its agents and employees an irrevocable
licence at any time to enter any premises where the Goods are or may be
stored in order to inspect them, or, where the Buyer's right to possession
has terminated, to recover them.
7 PRICE
7.1 Unless otherwise agreed by the Company in writing the price for the
Goods shall be the price for the quantities ordered as set out in the
Company's price list published on the date of delivery or deemed delivery.
7.2 The price for the Goods shall be exclusive of any value added tax
and, unless otherwise agreed in writing, all costs or charges in relation
to loading, unloading, carriage and insurance all of which amounts the
Buyer will pay in addition when it is due to pay for the Goods.
7.3 Where Goods are to be delivered in instalments the Company may charge
a different price for Goods delivered at different times and to different
Delivery Points even though such goods are covered by a single order.
7.4 Where the Company has agreed to supply Goods at a price based on minimum
order quantities over a specified period (the "Bulk Order Price ")
and the Buyer fails to make such minimum orders within that agreed period
then all supplies of goods during that period shall be considered by the
Company and the Buyer as Affected Supplies. The Company reserves the right
to increase the Bulk Order Price for all Affected Supplies including those
already made, to the price set out in the Company's price list published
on the dates of delivery or deemed delivery and the Buyer agrees to pay
such increased price for all Affected Supplies. The terms and conditions
associated with such Affected Supplies shall be as if the goods had not
been the subject of any Bulk Order Price including any consequential effect
on the Title and Risk notwithstanding the payments already made in respect
of Affected Supplies.
8 PAYMENT
8.1 The Company may invoice the Buyer for the price of the Goods and all
other sums due under Contract on or at time after delivery of the Goods
(or such time as the Company attempts to effect delivery of the Goods
if the Buyer refuses or fails to accept delivery.
8.2 Payment of the price for the Goods is due from the buyer 28 days from
the date of delivery (which shall include the date the goods are deemed
to have been delivered), or earlier in accordance with the terms of the
contract.
8.3 Time for payment shall be of the essence.
8.4 No payment shall be deemed to have been received until the Company
has received cleared funds.
8.5 All payments payable to the Company under the Contract shall become
due immediately upon termination of this Contract despite any other provision.
8.6 The Buyer shall make all payments due under the Contract without any
deduction whether by way of set-off, counterclaim, discount, abatement
or otherwise unless the Buyer has a valid court order requiring an amount
equal to such deduction to be paid by the Company to the Buyer.
8.7 If the Buyer fails to pay the Company any sum due pursuant to the
Contract the Company may;
8.7.1 charge the Buyer interest to the Company on such sum from the due
date for payment at the annual rate of 4% above the base lending rate
from time to time of Bank Rhode Island, accruing on a daily basis until
payment is made, whether before or after any judgment.
8.7.2 cancel the Contract and/or suspend, without notice, further deliveries
under the Contract or any other contract between the parties or any related
party of the Buyer, to
8.7.2.1 the Buyer (which shall include a delivery directly to a customer
of the Buyer) and/or
8.7.2.2 any buyer that is affiliated or associated with, controlled by,
or under the control of, any company or person t hat controls the Buyer
8.7.3 appropriate any payment made by the Buyer to such of the Goods (or
foods supplied under any other contract between the parties) as the Company
may think fit notwithstanding any purported appropriation by the Buyer.
9 QUALITY
9.1 The Company is not the manufacturer of the Goods and will transfer
to the Buyer the benefit of any warranty or guarantee given to the Company
by the manufacturer.
9.2 The Company warrants that (subject to the other provisions of these
Conditions) upon delivery the Goods will:
9.2.1 be of satisfactory quality within the provisions of the Uniform
Commercial Code;
9.2.2 be reasonably fit for the purpose specified in any specification
or brochure provided by the Company to the Buyer which is expressly incorporated
into the Contract;
9.3 The Company shall not be liable for a breach of any of the warranties
in condition 9.2 unless:
9.3.1 the Buyer gives written notice of the defect to the Company, and
(if the defect is as a result of damage in transit) to the carrier, within
3 days of the time when the Buyer discovers or ought to have discovered
the defect; and
9.3.2 the Company is given a reasonable opportunity after receiving the
notice of examining such Goods and the Buyer (if asked to do so by the
Company) returns such Goods to the Company's place of business at the
Buyer's cost for the examination to take place there.
9.4 The Company shall not be liable for a breach of any of the warranties
in condition 9.2 if:
9.4.1 The Buyer or any other party) makes use of the goods for any purpose
other than in accordance with condition 9.2.2 above; or
9.4.2 the Buyer (or any other party) makes any further use of such Goods
after giving such notice; or
9.4.3 the defect arises because the Buyer failed to follow the Company's
oral or written instructions, which shall include any instruction shown
by the manufacturer on the Goods, as to the storage of the Goods; or
9.4.4 the Buyer alters, which shall include any repackaging,, such Goods
without the written consent of the Company.
9.5 Subject to conditions 9.3 and 9.4, if any of the Goods do not conform
with any of the warranties in condition 9.2 the Company shall at its option
replace such Goods or refund the price of such Goods at the pro rata Contract
rate provided that, if the Company so requests, the Buyer shall, at the
Buyer's expense, return the Goods which are defective to the Company.
9.6 If the Company complies with condition 9.5 it shall have no further
liability for a breach of any of the warranties in condition 9.2 in respect
of such Goods.
9.7 The Company does not give any other warranties, representations, undertakings,
stipulations or undertakings of any nature save as expressly set out in
the Contract and in particular and without limitation does not give any
warranty that the goods will not infringe any intellectual property rights
of any third party and all conditions warranties, stipulations and other
statements whatsoever relating to such infringement or any alleged infringement
are hereby excluded.
10 OBLIGATIONS OF THE BUYER
10.1 The Buyer undertakes not to sell or market any Goods supplied by
the Company under any name or mark whatsoever other than the name and
mark affixed to the Goods as supplied, nor in any packaging or branding
other than that in which it is supplied by the Company to the Buyer without
the written consent of the Company.
10.2 The Buyer undertakes not to make any claim or representation as to
the use or effectiveness of the Goods except as set out in documentation
supplied by the Company or as approved by the Company.
10.3 The Buyer hereby agrees and undertakes that no analysis, analytical
investigation, physical examination or disassembly and reassembly of any
Goods will be undertaken or permitted by them without the express prior
written consent of the Company.
10.4 In consideration of the Company disclosing any Proprietary Information
to the Buyer, the Buyer hereby undertakes:-
10.4.1 to use all Proprietary Information so disclosed exclusively for
the purpose of evaluating it in order to enable the Buyer to exploit the
Goods in the ordinary course of its business which shall not include any
form of commercial exploitation of the Proprietary Information by the
Buyer or the development of products, or formulae to develop products,
which could be considered similar to the Goods;
10.4.2 to maintain secret and strictly confidential to itself and any
all Proprietary Information that it may acquire from the Company or from
any third party acting on behalf of the Company;
and it will accordingly not directly or indirectly use or disclose any
of the Proprietary Information in whole or in part save for the purposes
of and in accordance with this Agreement.
11 LIMITATION OF LIABILITY
11.1 Subject to condition 9, the following provisions set out the entire
financial liability of the Company (including any liability for the acts
or omissions of its employees, agents and sub-contractors) to the Buyer
in respect of:
11.1.1 any breach of these Conditions; and
11.1.2 any representation, statement, or tortious act or omission including
negligence arising under or in connection with the Contract.
11.2 All warranties, conditions and other terms implied by statute or
common law (save for the conditions implied by the Uniform Commercial
Code) are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these Conditions excludes or limits the liability of the
Company for death or personal injury caused by the Company's negligence
or fraudulent misrepresentation.
THE BUYER'S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION
11.4
11.4 Subject to conditions 11.2 and 11.3:
11.4.1 the Company's total liability in contract, tort (including negligence
or breach of statutory duty), misrepresentation or otherwise, arising
in connection with the performance or contemplated performance of this
Contract shall be to the contract price; and
11.4.2 the Company shall not be liable to the Buyer for any indirect or
consequential loss or damage (whether for loss of profit, loss of business,
depletion of goodwill or otherwise), costs, expenses or other claims for
consequential compensation whatsoever (howsoever caused) which arise out
of or in connection with the Contract.
12 ASSIGNMENT
12.1 The Buyer shall not be entitled to assign the Contract or any part
of it without the prior written consent of the Company.
12.2 The Company may assign the Contract or any part of it to any person,
firm, or company.
13 FORCE MAJEURE
13.1 The Company reserves the right to defer the date of delivery or to
cancel the Contract or reduce the volume of the Goods ordered by the Buyer
(without liability to the Buyer) if it is prevented from or delayed in
the carrying on of its business due to circumstances beyond the reasonable
control of the Company including, without limitation, acts of God, governmental
actions, war or national emergency, riot, civil commotion, fire, explosion,
flood, epidemic, lock-outs, strikes or other labour disputes (whether
or not relating to either party's workforce), or restraints or delays
affecting carriers or inability or delay in obtaining supplies of adequate
or suitable materials Provided that, if the event in question continues
for a continuous period in excess of 28 days, the Buyer shall be entitled
to give notice in writing to the Company to terminate the Contract.
14 GENERAL
14.1 Each right or remedy of the Company under the Contract is without
prejudice to any other right or remedy of the Company whether under the
Contract or not.
14.2 If any provision of the Contract is found by any court, tribunal
or administrative body of competent jurisdiction to be wholly or partly
illegal, invalid, void, voidable, unenforceable or unreasonable it shall
to the extent of such illegality, invalidity, voidness, voidability, unenforceability
or unreasonableness be deemed severable and the remaining provisions of
the Contract and the remainder of such provision shall continue in full
force and effect.
14.3 Failure or delay by the Company in enforcing or partially enforcing
any provision of the Contract will not be construed as a waiver of any
of its rights under the Contract.
14.4 Any waiver by the Company of any breach of, or any default under,
any provision of the Contract by the Buyer will not be deemed a waiver
of any subsequent breach or default and will in no way affect the other
terms of the Contract.
14.5 The formation, existence, construction, performance, validity and
all aspects of the Contract shall be governed by United States law and
the parties submit to the exclusive jurisdiction of the courts of the
United States of America.
15 COMMUNICATIONS
15.1 All communications between the parties about this Contract must be
in writing and delivered by hand or sent by pre-paid mail or sent by facsimile
transmission:
15.2 (in case of communications to the Company) to its registered office
or such changed address as shall be notified to the Buyer by the Company;
or
15.3 (in the case of the communications to the Buyer) to the registered
office of the addressee (if it is a company) or (in any other case) to
any address of the Buyer set out in any document which forms part of this
Contract or such other address as shall be notified to the Company by
the Buyer.
15.4 Communications shall be deemed to have been received:
15.4.1 if sent by pre-paid mail, 2 days (excluding Saturdays, Sundays
and bank and public holidays) after posting (exclusive of the day of posting);
15.4.2 if delivered by hand, on the day of delivery;
15.4.3 if sent by facsimile transmission on a working day prior to 4.00
pm, at the time of transmission and otherwise on the next working day;
15.4.4 Communications addressed to the Company shall be marked for the
attention of an Officer of the Company.
Caplock,
LLC
174 Georgia Avenue
Providence
Rhode Island 02905
USA
Caplock Trading Company
6 Brookside Close
Bransgore
Christchurch
Dorset BH23 8BT
E|ngland
November 2016
Caplock, LLC
174 Georgia
Avenue, Providence, Rhode Island 02905, USA
'Phone:
401-490-6033
E-mail:
sales@caplock.com
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