TERMS & CONDITIONS
“Seller” means Foundry Metallurgical Partners Ltd (registered in U.K] under registration number9406132);
“Specification” means the specification as per website identified by product code.
GENERAL
Notwithstanding any other provision of these Conditions of Sale Buyer acknowledges that: each product supplied is per Specification.
Acceptance: Subject to the provisions of these Conditions of Sale, Seller will accept Buyer’s order for the products specified by Seller and at the prices specified by Seller (provided that prices may be increased by Seller during the course of manufacture or delivery of products to reflect fluctuations in the prices of raw materials, components, heat and power, wages or any other term contributing to the cost of manufacturing and/or delivering the products). Any alteration by Buyer in the design or specifications and any suspension of work following on Buyer’s instructions or Buyer’s failure to give instructions will involve an increase in the price if the costs of manufacture and/or delivery are thereby increased. In the event of any conflict or inconsistency between these Conditions of Sale and the body of any quote, order acknowledgement or invoice (together the “Contract”), the body of the quote, order acknowledgement or invoice will prevail. Unless accepted in writing by an executive officer of Seller, any additional different or inconsistent terms or conditions in Buyer’s Purchase order, including, WITHOUT LIMITATION, any different or additional drawings, specifications, performance standards or testing requirements, WHICH are not attached to or incorporated by reference in these Conditions of Sale or in any QUOTE, ORDER ACKNOWLEDGEMENT OR INVOICE, are rejected by seller and shall not be binding on Seller nor have the effect of preventing the formation of a Contract or of varying or otherwise leaving open any terms or conditions OF THAT Contract. Neither Seller’s failure to respond to any such additional, different or inconsistent terms or conditions, nor Seller’s commencement of performance shall constitute assent thereto.
Assignment: These Conditions of Sale are issued solely to Buyer and Buyer will not assign or transfer, in whole or in part, any of its rights hereunder.
Cancellation/Changes: To the fullest extent permitted by applicable law, Buyer may cancel or modify a Contract only with Seller’s written consent, which may be granted or withheld at Seller’s sole discretion.
Delivery: All products are supplied “Ex-Works” (as that term is understood in the International Chamber of Commerce INCOTERMS 2000) and all delivery charges will be separately charged to Buyer in addition to the price. Seller will use commercially reasonable efforts to meet any delivery estimates and performance timetables specified in Buyer’s purchase order or any Contract, but, to the fullest extent permitted applicable by law, In no event will Seller be liable for Delivery or performance delays regardless of cause.
Each delivery shall constitute a separate Contract under these Conditions of Sale.
The delivery by Seller of a quantity of products which is from 90% to 110% of the quantity ordered shall, unless otherwise agreed, be accepted by Buyer as satisfaction of the quantity ordered and Buyer shall pay pro rata for the quantity accepted.
Property in the products shall not pass to Buyer until the contract price and any tax levied on sale of products by Seller to Buyer has been paid in full. Products delivered by Seller to Buyer shall, so long as they are the property of Seller and in the possession of Buyer, be stored separately by Buyer so that they can be readily identified as the property of Seller and be protected, insured for their full value with a reputable insurer (and if Seller so requests, ensure that Seller’s name be noted on the insurance policy) and indemnified as Seller’s property. Buyer shall act as agent of Seller, without any right of compensation, for the sole purpose of sale of products delivered by Seller to Buyer which are the property of Seller, Buyer shall inform the subsequent buyer of the fact that the goods resold are subject to a retention of title, and the price at which Buyer sells the said products being not less than the contract price at which Seller has agreed to sell the products to Buyer and the conditions governing such sale by Buyer as agent being not less favourable to Seller than the conditions (excluding the provisions of this clause) under which Seller has agreed to sell the products to Buyer. All sums received (less any agreed commission) by Buyer in its capacity as Seller’s agent in the limited context of resale by Buyer of goods still under retention of title shall, until paid to Seller, be held in trust by Buyer as fiduciary for the benefit of Seller and shall not be mixed with other monies of Buyer. To the fullest extent permitted by applicable law, in the event that Buyer has not made full payment for products by the due date the Buyer shall allow the Seller, at any time after the due date, to retake possession of all or any part of the unpaid products and enter Buyer’s premises and do all things needed to repossess products not paid for and to remove them from Buyer’s premises, which Buyer hereby authorises in advance. Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the products which remain the property of Seller, but if Buyer does so, and to the maximum extent permitted by applicable law, any monies owing by Buyer to Seller shall (without prejudice to any other right or remedy of Seller) forthwith become due and payable.
Inspection and Testing: Buyer shall inspect and test the product on receipt.
Warranty – Products:
Seller warrants that each product sold by Seller to Buyer pursuant to any Contract will conform to the Specification. If, within 30 days of delivery, Buyer notifies Seller that a product fails to conform to the Warranty, Seller’s sole obligation, and Buyer’s sole remedy, will be, at Seller’s option, to repair or replace the non-conforming product, “CPT” (as that term is understood in the International Chamber of Commerce INCOTERMS 2000), or to refund the price paid to Seller by Buyer for that product and the Buyer’s reasonable costs of returning the product to Seller, provided in each case that Buyer shall give Seller immediate written notice upon discovery of such non-conformity, specifying in reasonable detail the nature thereof. Seller will have the option of requiring the return of the allegedly Non-Conforming Product, freight prepaid, to verify the claim. The remedies in this paragraph will be Buyer’s sole remedies for failure or underperformance of a non-conforming product and, to the maximum extent permitted by applicable law, under no circumstances will Seller be liable for any damages, including any special, indirect, incidental, punitive or consequential damages of any kind, including, without limitation, any loss of profits, loss of business, depletion of goodwill, loss of data, loss of use, loss of production and loss of contracts, caused by failure or underperformance of Seller’s products. Repairs or alterations made without Seller’s written consent shall render the Warranty void and of no effect. Buyer shall be solely responsible for all defects or damages attributable to Buyer or conditions (including damage) of or to any product after delivery, including as a result of the use of such product with any other product or raw material not provided or approved in writing by Seller.
Warranty – Services: Seller warrants that all services provided to Buyer (including any design and application engineering support services in connection with the production of any prototypes) will be performed in a workmanlike manner as set forth in these Conditions of Sale. In the event of any breach of the foregoing warranty, Seller’s sole obligation, and Buyer’s sole remedy, will be to re-perform the relevant service, without additional charge, or to refund any price paid with respect to such non-conforming service, at Seller’s option and, to the maximum extent permitted by applicable law, under no circumstance will Seller be liable for any damages, including any special, indirect, incidental, punitive or consequential damages of any kind, including, without limitation, any loss of profits, loss of business, depletion of goodwill, loss of data, loss of use, loss of production and loss of contracts, caused by any breach of the foregoing warranty.
Except as expressly provided in the “Warranty” sections above, Seller makes no representation or warranty of any kind, and all other representations and warranties, express or implied with respect to any products, services or documentation, including without limitation, any warranty of merchantability, non-infringement or fitness for a particular purpose, are excluded from these conditions of sale to the maximum extent permitted by law.
Any input from Seller regarding any aspect of the products or suitability for any application is provided solely as a convenience to Buyer, on an as-is basis and without any warranty (express or implied) and does not constitute a recommendation or suggestion as to any aspect of the particular product or USE for any particular application.
Seller Liability: Under no circumstances will Seller be liable, whether in contract, tort or otherwise (including based on negligence or strict liability), for any special, indirect, incidental, punitive or consequential damages of any kind, including, without limitation, any loss of profits, loss of business, depletion of goodwill, loss of data, loss of use, loss of production and loss of contracts. Without limiting any other provision hereof, Seller’s maximum liability for direct damages in respect of any products furnished to Buyer shall not exceed the actual price paid to Seller in respect thereof. Buyer covenants that its use of any products furnished hereunder will comply with all applicable laws and regulations, and with any applicable product specifications and documentations.
Nothing in this clause however shall limit or exclude Seller’s or its officers, agents or employees’ liability for death or personal injury resulting from Seller’s or its officers, agents or employees’ negligence, for damages which were caused by wilful intent or gross negligence and/or any other liability which cannot be limited or excluded under applicable mandatory laws.
Confidentiality: “Confidential Information” means: (a) trade secret and proprietary and confidential information of Seller which is disclosed by Seller to Buyer and all analyses, compilations, studies, prototypes or other documents or materials prepared by Buyer which may incorporate such information; and (b) the existence of a relationship between Buyer and Seller and all information associated with such relationship. Buyer shall keep in confidence and not use other than for the sole benefit of Seller, nor disclose or make available to any third party any Confidential Information except those employees of Buyer who:(i) reasonably require access to such information for the benefit of the relationship between Buyer and Seller; and (ii) have been informed of the confidential nature of the Confidential Information.
Buyer may only publish, use or disclose Seller’s name or identity (including, without limitation, in any advertisement, news release or patent application) with the prior written approval of Seller’s authorized representative.
SELLER’S INTELLECTUAL PROPERTY: For the purposes of these Conditions of Sale, a party’s “Intellectual Property” means the rights a party may have in and to all know-how, information relating to secret processes and manufacturing techniques, inventions, patents and applications for patents, trade marks, trade names, licences, copyrights, designs and drawings, design rights and applications for registered designs, plans, brochures, technical publications, computer data and other technical mattes and all other rights by whatever name called affording equivalent or similar protection in respect of the products or arising out of work done in connection with a Contract between Seller and Buyer and all products developed as a result thereof or other proprietary information of any kind related to any product. Without limiting in any way the extent of Seller’s Intellectual Property, Buyer acknowledges and agrees that the Intellectual Property in relation to the following as relevant to the Seller’s manufacture of any product, is the sole and exclusive property of Seller: plans, drawings and specifications submitted by Seller to Buyer or prepared by Seller for Buyer’s requirements; details of any raw material or its supplier; the mix of raw materials used; any pressing, moulding or firing/sintering method used; and any other process used by Seller.
Force Majeure: Seller shall have no liability or be in breach of any provision of any Contract for any failure or delay in performance due to strikes, lockouts, concerted acts of workmen or other industrial disturbances, fires, explosions, floods or other natural catastrophes, civil disturbance or riots, armed conflict whether declared or undeclared, terrorist acts, curtailment, shortage, rationing or allocation of normal sources of supply of labor, materials, transportation, engineering, Buyer’s act or omission, adverse future government action, energy or utilities, accidents, acts of God, delays of subcontractors or vendors, sufferance of or voluntary compliance with acts of government and government regulations, embargoes or any other similar or dissimilar cause which is beyond the reasonable control of Seller.
Dispute Resolution – Choice of Law and Venue: To the fullest extent permitted by applicable law, the United Nation Convention on Contracts for the International Sale of Goods shall not apply to the transactions contemplated herein. The rights and obligations of the parties in respect of these Conditions of Sale and any Contract shall be governed by and construed according to the law of England and Wales without regard to its principles of conflicts of laws and the parties submit to the exclusive jurisdiction of the courts of [England and Wales].
Invoices & Payment: Payment will be due 30 days after the date of Seller’s invoice. All overdue amounts will bear interest at the lesser of 1.5% per month or the highest rate allowed by law. If any amount due hereunder is collected through a collection agency or attorney, Buyer will pay Seller’s cost of collection, including reasonable attorneys’ fees. Seller reserves and Buyer grants a present and continuing first priority purchase money security interest and lien over all products sold hereunder until the purchase price therefor has been paid in full. Buyer irrevocably appoints Seller as attorney-in-fact to execute, if necessary, and file any and all documentation required by law or deemed necessary and appropriate by the Seller to effect, protect and continue Seller’s security interest.
Taxes: Quoted prices do not include any excise, sales, value added, products and services, privilege use or similar taxes or levies, or import or export duties payable in connection with sale or delivery of any products or performance of any services, all of which shall remain the sole responsibility of Buyer. If Seller is required to collect or pay any such taxes, levies or duties, Buyer will pay such amounts to Seller upon invoice.
Waiver: No waiver of any provision, term or condition by Seller shall be valid unless in writing, and no such waiver will constitute a precedent or waiver of the same or any other term or condition on any future occasion.
Miscellaneous: Except as otherwise expressly provided in a written document signed by both parties, these Conditions of Sale constitutes the entire agreement between the parties and all prior agreements and communications between the parties are hereby merged into these Conditions of Sale. All notices required under these Conditions of Sale shall be in writing and served by commercially reasonably means. In case any provision of these Conditions of Sale should be or become unenforceable under applicable law, that provision will be severed and the remaining provisions will remain in effect.