GENERAL
1.Business Day: a day other than a Saturday, Sunday or public holiday in Ireland, when banks in Dublin are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with Clause 60.
Contract: the contract between the Seller and the Purchaser for the sale and purchase of the Goods in accordance with these Conditions.
Contract Price: the agreed price (stated in the Contract to which these conditions apply) at the time the Contract came into effect. Unless otherwise agreed the Seller’s price ruling at date of dispatch of Goods shall be the agreed price.
Force Majeure Event: an event, circumstance or cause beyond a party's reasonable control.
Goods: the goods (or any part of them) set out in the Order to which these Conditions apply.
Order: the Purchaser’s order for the Goods, as set out in the Purchaser’s written acceptance of the Seller’s quotation.
Purchaser: the immediate purchaser of the Goods under Contract with the Seller.
Seller: Siltherm Group Holdings Ltd, whose address is Room 17, Building 5, 2842 Xingang East Road, Haizhu District, Guangzhou, Guangdong Province, China.
Specification: any specification for the Goods, including any related plans and drawings, that is agreed in writing by the Purchaser and the Seller.
INTERPRETATION
2.
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its permitted assigns.
(c) A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
(d) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(e) A reference to writing or written includes fax and email.
(f) Words importing the plural shall include the singular and vice versa and words denoting any gender include all genders.
(g) References to it or its shall, as the context requires, be deemed to be references to he or she or, as the case may be, his and hers.
3. These conditions govern all sales and negotiations for sales of goods by the Seller as described above and unless expressly accepted by a director of the Seller in writing, no condition or qualification inconsistent herewith, whether agreed to by the Seller’s agent or not, shall form any term of a sale hereunder.
4.All quotations are without engagement and may be withdrawn at any time. Unless otherwise agreed, each quotation issued by the Seller is withdrawn 30 days after its date of issue by the Seller.
5.All Orders require the Seller’s acceptance in writing.
6.All amendments to the Order require the Seller’s acceptance in writing and will be executed only upon these terms and conditions (unless otherwise agree by the Seller in writing).
7.The titles used herein are for convenience only and shall not affect the construction hereof.
BASIS OF CONTRACT
8.These Conditions apply to the Contract to the exclusion of any other terms that the Purchaser seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
9.The Order constitutes an offer by the Purchaseer to purchase the Goods in accordance with these Conditions. The Purchaser is responsible for ensuring that the terms of the Order and any applicable Specification submitted by the Purchaser are complete and accurate.
10.The Order shall only be deemed to be accepted when the Seller issues a written acceptance of the Order, at which point the Contract shall come into existence.
11.The Purchaser waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Purchaser that is inconsistent with these Conditions.
12.Any samples, drawings, descriptive matter or advertising produced by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
13.A quotation for the Goods given by the Seller shall not constitute an offer. A quotation shall only be valid for a period of 20 Business Days from its date of issue.
14.The Goods are described in the Seller’s catalogue as modified by any applicable Specification.
15.The Seller reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
PERFORMANCE OF CONTRACT
16.(i)If by reason of Act of God, war, government control, storm, fire, tempest, strike, lockout or any other cause beyond its reasonable control the Seller is prevented from performing any obligation under the Contract the Seller shall be entitled to suspend deliveries and, at its option, should such suspension continue for a period of six months, by written notice to cancel the unfulfilled part of the Contract.
(ii)In the event of any failure by the Purchaser to perform its obligations under the Contract the Seller shall be entitled without prejudice to any other remedy of the Seller or to the obligation of the Purchaser to pay for goods already delivered or manufactured:
(a)to suspend delivery to the Purchaser so long as such failure shall continue; and/or
(b) by notice to the Purchaser to cancel any further obligations of the Seller under the Contract.
DELIVERY
17.The Seller shall ensure that each delivery of the Goods is accompanied by a delivery note that shows the date of the Order, the purchase order number, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Goods are being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
18.The Seller shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Seller notifies the Purchaser that the Goods are ready.
19.Delivery is completed on the completion of unloading of the Goods at the Delivery Location.
20.Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Seller shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Purchaser’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
21.If the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Purchaser in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Seller shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Purchaser’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
22.If the Purchaser fails to take delivery of the Goods within three Business Days of the Seller notifying the Purchaser that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Seller’s failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Seller notified the Purchaser that the Goods were ready; and
(b) the Seller shall store the Goods until delivery takes place, and charge the Purchaser for all related costs and expenses (including insurance).
23.If ten Business Days after the day on which the Seller notified the Purchaser that the Goods were ready for delivery the Purchaser has not taken actual delivery of them, the Seller may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Purchaser for any excess over the price of the Goods or charge the Purchaser for any shortfall below the price of the Goods.
24. If the Seller delivers up to and including 5% more or less than the quantity of Goods ordered the Purchaser may not reject them, but on receipt of notice from the Purchaser that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.
25.The Seller may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Purchaser to cancel any other instalment.
26.Each delivery shall constitute a separate contract upon these Conditions and a failure to make any delivery or to make any delivery on the due date shall not vitiate the contract.
TITLE AND RISK
27.Title to the Goods shall not pass to the Purchaser until the Seller receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Seller has supplied to the Purchaser in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.
28.Until title to the Goods has passed to the Purchaser, the Purchaser shall:
(a) store the Goods separately from all other goods held by the Purchaser so that they remain readily identifiable as the Seller’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify the Seller immediately if it becomes subject to any of the events listed in clause 32(b) to 32(d); and
(e) give the Seller such information as the Seller may reasonably require from time to time relating to:
(i) the Goods; and
(ii) the ongoing financial position of the Purchaser.
29. Subject to clause 30, the Purchaser may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Seller receives payment for the Goods. However, if the Purchaser resells the Goods before that time:
(a) it does so as principal and not as the Seller’s agent; and
(b) title to the Goods shall pass from the Seller to the Purchaser immediately before the time at which resale by the Purchaser occurs.
30.At any time before title to the Goods passes to the Purchaser, the Seller:
(a) may by notice in writing, terminate the Purchaser’s right under clause 29 to resell the Goods or use them in the ordinary course of its business; and
(b) require the Purchaser to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Purchaser fails to do so promptly, enter any premises of the Purchaser or of any third party where the Goods are stored in order to recover them.
31.Unless otherwise agreed by the Seller and subject to Clause 47 hereof, the Goods shall on despatch from the Seller’s business premises be at the Purchaser’s risk and the Seller will not entertain any claim for damage, shortage or loss occurring in transit but will on behalf of the Purchaser forward any such claim to the carrier if such a claim is notified in writing to the Seller in time to enable the Seller to comply with any time limit to which the contract of carriage may be subject.
TERMINATION
32.Without limiting its other rights or remedies, the Seller may at its own sole discretion by written notice to the Purchaser terminate the Contract or cease to observe or perform any terms or conditions in the Contract on its part to be observed or performed and/or stop any Goods in transit or enter the Purchaser’s premises and remove Goods which are the Seller’s property if:
(a) the Purchaser commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 20 Business Days of that party being notified in writing to do so;
(b) the Purchaser takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), (or being an individual, files a petition in bankruptcy or is adjudged bankrupt) having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(c) the Purchaser suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
(d) the Purchaser’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
33.Without limiting its other rights or remedies, the Seller may suspend provision of the Goods under the Contract or any other contract between the Purchaser and the Seller if the Purchaser becomes subject to any of the events listed in clause 32(b) to clause 32(d), or the Seller reasonably believes that the Purchaser is about to become subject to any of them, or if the Purchaser fails to pay any amount due under this Contract on the due date for payment.
34.Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Purchaser if the Purchaser fails to pay any amount due under the Contract on the due date for payment.
35.On termination of the Contract for any reason the Purchaser shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Seller shall submit an invoice, which shall be payable by the Purchaser immediately on receipt.
36.Termination of the Contract, however arising, shall not affect any of the parties' rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.
37.Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
38.Unless otherwise agreed in writing, patterns jigs tools and fixtures manufactured by the Seller for carrying out the Order will be the property of the Seller notwithstanding any charge made by the Seller for their manufacture. Where the Seller at the Purchaser’s request uses the Purchaser’s patterns, jigs, tools or fixtures, replacement of or alterations or repairs due to normal wear and tear or to their condition being in the Seller’s opinion unsuitable for production of satisfactory goods shall be paid for by the Purchaser.
39.Plans drawings and specifications submitted by the Seller to the Purchaser or prepared by the Seller for the Purchaser’s requirements shall remain the Seller’s property and the Seller reserves all rights vested in the Seller by way of letters, patent, registered designs, copyright or trade marks or trade secrets in any such plans drawings and specifications. Such plans, drawings and specifications must not be copied, disclosed to any third party or otherwise used without the Seller’s written permission and where submitted to the Purchaser must be returned to the Seller at the Seller’s request made at any time hereafter.
40.Unless the Seller agrees in writing to work to the Purchaser’s drawings or specifications the Seller’s normal tolerances and material specification will apply.
PAYMENTS
41.The Seller may, by giving notice to the Purchaser at any time 10 Business Days before delivery, increase the Contract Price to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Seller’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Purchaser to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Purchaser or failure of the Purchaser to give the Seller adequate or accurate information or instructions.
42.The Contract Price:
(a) excludes amounts in respect of value added tax (VAT), which the Purchaser shall additionally be liable to pay to the Seller at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) excludes the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Purchaser.
43.The Seller may invoice the Purchaser for the Goods on or at any time after the completion of delivery.
44.The Purchaser shall pay each invoice submitted by the Seller:
(a) within 28 days of the date of the invoice or in accordance with any credit terms agreed by the Seller and confirmed in writing to the Purchaser; and
(b) in full and in cleared funds to a bank account nominated in writing by the Seller, and
time for payment shall be of the essence of the Contract.
45.If the Purchaser fails to make a payment due to the Seller under the Contract by the due date, then, without limiting the Seller’s remedies under clauses 32 - 38 (Termination), the Purchaser shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 45 will accrue each day at 2% a year above the lending base rate of the Seller’s bankers for the time being, but at 2% a year for any period when that base rate is below 0%.
46.All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding.
47.
(a) When the Contract Price is a C.I.F. price (Cost, Insurance, Freight), delivery will be made to the port stated in the Order, using carriers of the Seller’s choice except where specifically agreed otherwise. No lighterage, landing charges, dock wharf customs dues or taxes are included. Freight and insurance charges are based on rates obtainable at the date of the Order. If these rates increase or decrease between the date of the Order and date of shipment the Seller reserves the right to adjust the Contract Price by the net amount of this increase or decrease.
(b) When the Contract Price is F.O.B. price (Free On Board), delivery will be to a place agreed with Purchaser. The Seller will pay costs of transport to the place of delivery and the Goods will remain at the Seller’s risk until delivered. The Purchaser will promptly notify the Seller of any damage, shortage or loss occurring in transit in time to enable the Seller to comply with any time limit to which the contract of carriage may be subject.
48.Special delivery charges being more than those that would normally be incurred by the Seller and which are in fact incurred to comply with the Purchaser’s instructions will be charged extra to the Purchaser. No allowance for carriage will be made by the Seller for goods collected from Seller’s business premises by the Purchaser.
49.Unless otherwise specified, all packing cases and othercontainers are non-returnable. Where specified as being returnable, packing cases and containers when charged will be credited on return in good condition carriage paid within one month of receipt by the Purchaser, provided that return is duly notified to the Seller in advance of material being received by the Seller.
WARRANTY
50.The warranties contained in the following provisions of this clause are given by the Seller for a period of 6 months from the date of delivery of the Goods (the Warranty Period) and are in lieu of and to the exclusion of any other representations, guarantees, conditions or warranties whatsoever as to the quality of the Goods supplied by the Seller or their fitness for any purpose whether such representations, guarantee, conditions or warranties be implied by statute or otherwise expressed and the remedy available to the Purchaser in the event of breach of the said warranty and/or undertaking is limited in accordance with sub-clause (c) of this clause:
(a) the Goods will be manufactured in accordance with the Contract and be of sound material and with good workmanship in accordance with the Specification;
(b) the Seller warrants that the Goods will be of merchantable quality in accordance with the Specification but the Seller does not warrant or represent that the Goods will be fit for the Purchaser’s specific purposes;
(c) if within one month from the date of receipt of the Goods by the Purchaser, the Purchaser notifies the Seller in writing that any of the Goods are defective such that any Specification has not been met:-
(i)The Purchaser shall if requested by the Seller give to the Seller full opportunity and access to inspect such Goods at the Purchaser’s premises.
(ii)If the Goods alleged to be defective and not in accordance with the Specification are returned during the Warranty Period to the Seller for examination with carriage paid for by the Purchaser with a full statement of the alleged defect the Seller will repair or at the Seller’s option replace such Goods as the Seller recognises to be defective owing to faulty material or workmanship. Replacement goods will be delivered free of charge to the same point of delivery as the original goods or to such place of equivalent distance as the Purchaser reasonably requests. No claim shall be made by the Purchaser for expenditure incurred by the Purchaser on goods which are subsequently replaced or repaired.
(d) The Seller shall not be responsible whether in contract or tort or otherwise howsoever for:-
(i)consequential loss or damage caused by or arising out of the use of the Goods or occurring in respect of the Goods and;
(ii)loss or damage occurring through any failure by the Purchaser to use the Goods in accordance with the Seller’s recommendation or through the Purchaser using goods for purposes not specifically approved in writing by the Seller.
(e) When the Goods contain parts not of the Seller’s manufacture, the Purchaser shall be entitled only to the benefit of any guarantee condition or warranty which the Seller shall have received in respect thereof and only to the extent that the Seller can enforce the same.
51.The Seller shall not be liable in contract or in tort or otherwise howsoever for any loss or damage including consequential loss or damage arising from delay in manufacture or delivery howsoever caused or for any delay in or failure or delivery after goods have been dispatched from Seller’s business premises (unless otherwise agreed by Seller in writing).
52.The Seller shall not be liable in contract or in tort or otherwise howsoever for any loss damage or injury where the Specification including patterns, jigs, fixtures, drawings, or other particulars supplied by the Purchaser are inaccurate or in a defective condition and the Purchaser shall indemnify the Seller and keep the Seller indemnified against any claims, demands, penalties, costs and expenses suffered by the Seller by reason of such inaccuracy or defective condition.
53.The Seller will insure patterns, jigs and fixtures owned by Purchaser to their full value against loss, damage or destruction by fire whilst in the Seller’s possession.
54.Where any design, drawing or specification of the Purchaser relating to the Goods is changed at the request of the Purchaser, the Seller shall not be liable to Purchaser (in contract or in tort or otherwise howsoever) for any loss damage or injury to persons or property including consequential loss arising out of any defect of default on the part of the Seller in any such changed design drawing or specification.
PURCHASER’S DUTIES
55.In respect of any Goods manufactured in accordance with plans, drawings or specifications provided by the Purchaser, or in accordance with instructions express or implied of the Purchaser, the Purchaser shall indemnify the Seller and keep the Seller indemnified against all loss sustained by the Seller as a result of any claim for infringement or alleged infringement of letter patent, registered designs, copyrights, trade marks or similar rights. Furthermore, in respect of such Goods the Seller intends to transfer only such title as the Seller has and the Purchaser undertakes to be satisfied by the transfer of such title.
56.The Purchaser shall indemnify the Seller and keep the Seller indemnified against all damages, penalties, costs, claims and payments incurred by the Seller or for which the Seller may be liable to third parties arising (in contract or in tort or otherwise howsoever) out of the use of the Goods supplied hereunder (including, without prejudice to the foregoing, claims in respect of death or injury to persons).
SEPARATE AND SEVERABLE
57.Each clause and sub-clause in these terms and conditions is separate and severable and enforceable accordingly.
ASSIGNMENT AND OTHER DEALINGS
58.
(a) The Sellor may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Purchaser may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Sellor.
ENTIRE AGREEMENT
59.
(a) This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
VARIATION
60. No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives.
WAIVER
61.No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
SEVERANCE
62.If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 62 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
NOTICES
63.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to the address specified in the Order.
(b) Any notice or communication shall be deemed to have been received:
(i) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address; and
(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and
(iii) if sent by fax or email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 63, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.
(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
GOVERNING LAW
64.The Contract to which these Conditions apply, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of Ireland.
JURISDICTION
65.Each party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract to which these Conditions apply or its subject matter or formation.