These terms and conditions(Agreement) govern the sale of Products (defined hereinafter) by the Seller (defined hereinafter) to the Buyer (defined hereinafter). This Agreement takes precedence over Buyer’s terms and conditions set out in the Purchase Order (defined hereinafter) or any other document issued by the Buyer. Neither Seller’s commencement of performance or delivery shall be deemed or construed as acceptance of Buyer’s supplemental or conflicting terms and conditions. Seller’s failure to object to conflicting or additional terms will not change or add to the terms of this Agreement. Buyer’s acceptance of the Products from the Seller or Buyer’s payments for the Products or Buyer’s signing of this Agreement (whichever is earlier) shall be deemed to constitute acceptance of the terms of this Agreement.
In this Agreement, unless the context otherwise requires, the following words and expressions shall have the meaning ascribed to them as follows:
Approval of Order means the instrument in any form and under any title issued by the Seller to the Buyer acknowledging the Products, their quantity and price which the Seller shall sell to the Buyer.
Buyer means the person who or the entity which issues the Purchase Order (in whatever form) to the Seller.
Products means the products set out in the Approval of Order form that the Seller has agreed to supply to the Buyer.
Purchase Order means an order for products issued by the Buyer to the Seller in writing.
Seller means any company under Sanipex Group which includes without limitation Sanipex S.A. Sanipex FZE, Bagno Design LLC, Aquazone LLC, Sanipex Abu Dhabi LLC, Sanipex Qatar LLC, Sanipex Oman LLC, Sanipex (UK) Limited, Bagno Design Limited, Aquazone Limited, Sanipex Ireland Limited, Central Asia (Holdings) Limited and all subsidiaries of each of the above company (that may exist from time to time). Reference to Sanipex Group Companies shall include all of the above Companies.
2. PURCHASE ORDERS
2.1 All Purchase Orders placed by Buyer are subject to acceptance by Seller. Purchase Orders once accepted by issuing Approval of Order may not be cancelled or rescheduled by the Buyer without Seller’s written consent. All Purchase Orders must specify the product details, unit quantities and expected delivery dates of the Products being purchased. The Buyer acknowledges that the Product specification may vary as per industry standards and that such variations shall not be construed as breach of this Agreement.
2.2 Any quotations or estimates or tenders issued by the Seller shall be non-binding and shall not be construed as binding contract between the Parties.
3. EFFECTIVE DATE
3.1 This Agreement shall become effective and a binding contract between the parties on the date Seller issues the Approval of Order form (the "Effective Date "). If the details or quantities of the Products described in the Seller's quotation differ from those set out in the Approval of Order form the latter shall apply.
4.1 Prices specified in the Approval of Order shall be Ex-Works Seller’s shipping point, exclusive of freight, insurance and handling unless otherwise stated in Approval of Order.
4.2 Notwithstanding issuance of Approval of Order, prices of Products are subject to an upward revision if the cost of production, supplies, labour, deliveries or duties increase.
4.3 Unless otherwise expressly agreed by the Parties, all duties, taxes, fees, levies, freight, insurance and other payments applicable on the sale of Products shall be borne and paid in full by the Buyer.
5.1 The Buyer shall pay price of Products:
(a) in full without set-off, counterclaim or withholding of any kind (save where and to the extent that this cannot by law be excluded); and
(b) in advance and in the currency set out in Seller's Approval of Order unless otherwise agreed by the Seller in writing. Without prejudice to Seller's other rights, Seller reserves the right to:
(i) charge interest on any overdue sums at 3% per annum above the base lending rate of HSBC Bank, UK (or such higher rate stipulated by applicable law) during the period of delay;
(ii) suspend performance of the Agreement (including withholding shipment) in the event that Buyer fails or in Seller’s reasonable opinion it appears that Buyer is likely to fail to make payment when due under the Agreement or any other contract; and
(iii) at any time require such reasonable security for payment as Seller may deem reasonable.
Nothing contained herein shall relieve the Buyer from its payment obligations for the Products delivered by the Seller. Payments made by the Buyer to incorrect bank accounts shall not relieve the Buyer from its payment obligations towards the Seller.
6.1 Unless otherwise stated in the Approval of Order:
i. the Products will be delivered Ex Works to the Seller’s destination named in the Approval of Order.
ii. all periods stated for delivery shall be estimates only and shall not construe as binding contractual obligations of the Seller. The Buyer shall not decline any delayed or short deliveries.
6.2 If Seller is delayed in or prevented from performing any of its obligations under this Agreement due to the acts or omissions of the Buyer or its representatives (including but not limited to failure to provide specifications and/or making payment as per the terms herein), the delivery/completion period and the Product price shall both be adjusted accordingly.
6.3 If delivery is delayed due to any act or omission of the Buyer, or if having been notified that the Products are ready for despatch, Buyer fails to take delivery or provide adequate shipping instructions then, notwithstanding anything contained in clause 7.3, Seller shall be entitled to resell or dispose the Products in a manner Seller in its sole discretion deems appropriate, without being liable to refund the price already paid by the Buyer.
7. DELIVERY, RISK & TITLE
7.1 Risk of loss of or damage to the Products shall pass to Buyer upon delivery as per clause 6.1 (i). Buyer shall be responsible for insurance of the Products after risk has so passed to it.
7.2 Delivery terms used in this Agreement shall be defined in accordance with the latest version of Incoterms.
7.3 Title to the Products shall pass to the Buyer upon the Buyer making Payment for the Products to the Seller.
7.4 Time for payment of price of the Products is of essence.
7.5 If the Buyer sells the Products in the ordinary course of its business without making payment of the Price of the Products in full to the Seller, the Buyer shall hold the proceeds on trust for the Seller and shall account to the Seller for such proceeds.
8. RETURN, EXCHANGES AND REFUND
8.1 Return & Exchange
8.1.1 Buyer may return or exchange the Products ordered in error only if they are returned or exchanged within 30 days calendar days from the delivery date. This shall exclude:
i. Customised Products
ii. Products specially ordered for the Buyer
iii. Products sold during promotion
8.1.2 Products returned or exchanged shall be of current stock, in perfect saleable conditions, in their original packaging and in unused condition except if approved for failure analysis/warranty evaluation by the Seller’s representative.
8.2 Damaged Products
8.2.1 The Buyer shall forthwith upon acceptance of delivery of Products, inspect them and verify:
i. Any apparent breakages, damages or order discrepancies visible to the naked eyes and
ii. Any shortages or excess deliveries.
The Buyer shall record the above on the delivery note and forthwith return all damaged Products or the excess quantities to the Seller’s representative. Unless the Seller has shipped the Products to the Buyer’s location, the Seller shall not be liable for Products damaged during transportation.
8.2.2 In cases where the damages/defects are not apparent, the Buyer shall inform the Seller of such damages/defects no later than 24 hours from the time of delivery. The Seller should be entitled to inspect such damaged/defective Products.
8.3 Refund- The Seller shall refund price of the returned Products in accordance with its then prevailing refund policy and subject to deduction of:
i. re-stocking fee of 20%.
ii. £12 per carton and £50 per pallet for the collection of returns ordered in error or surplus to requirements.
8.4 Installation - The Buyer acknowledges that the Seller does not provide any installation services for sanitaryware/bathroom products. The Seller shall not be liable for damages resulting from faulty installation or any damages caused to the sanitaryware/bathroom Products during installation.
9. FORCE MAJEURE
9.1 The Seller shall not be liable for any loss or damage caused to the Buyer due to non-performance or delay in the performance of any of its obligations to the Buyer due to act of God, war, acts of terrorism, fire, floods, civil disturbance, government action, traffic or shipping disturbances, unforeseeable reduced production, strike, lock out, unforeseeable shortages of labor or trade dispute (whether involving its own employees or those of any other person), difficulties in obtaining materials/utilities/supplies, breakdown in machinery, fire or accident or any other causes whatsoever beyond the control of the Seller. Should any such event occur the Seller reserves the right to cancel or suspend this Agreement without incurring any liability for any loss or damage thereby occasioned.
10.1 Subject to the conditions set out below the Seller warrants that it will make commercially reasonable endeavours to ensure that at the time of delivery, the Products correspond:
10.1.1 with any sample of the Products shared with the Buyer
10.1.2 with the description, specification and particulars of the Products contained in the Seller’s publication valid on the date the Products were ordered and upon which the Buyer shows it relied and
10.1.3 any additional description specification or particulars shared by the Buyer in writing with the Seller.
10.2 Notwithstanding anything contained in this Agreement, the Seller shall not be liable:
10.2.1 for any defect arising from fair wear and tear, damage, negligence, abnormal conditions of working or of use, failure to follow the Seller’s instructions (whether oral or in writing) or misuse of the Products.
10.2.2 under the above warranty (or any other warranty, condition or guarantee) if the total price for the Products has not been paid by the Buyer as per terms of this Agreement.
10.2.3 if the Products suffer from color or other minor variances or irregularities which habitually occur in Products manufactured by the process used by the Seller or its suppliers or such variances are known in the industry.
10.2.4 for any claims made after expiry of 15 days from the date of delivery of Products (unless otherwise expressly set out herein.
10.3 All warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
11. LIMITATION OF LIABILITY
11.1 Supplier's maximum aggregate liability for any and all losses, liabilities, expenses (including legal expenses), damages, claims or actions, arising in or by virtue of breach of Agreement, tort (including negligence), misrepresentation, breach of statutory duty, strict liability, infringement of intellectual property rights or otherwise, shall in no circumstances exceed a sum equal to the total price of the Product.
12. COMPLIANCE WITH LAWS
12.1 From the date of delivery, Buyer shall be solely responsible for complying with all applicable laws, rules, regulations and orders of any authority that may be prevailing in any country in relation the Products.
13. DEFAULT, INSOLVENCY AND CANCELLATION
13.1 Seller shall be entitled, without prejudice to any other rights it may have, to cancel the Agreement forthwith, wholly or partly, by notice in writing to Buyer, if
(a) Buyer is in default of any of its obligations under the Agreement and fails, within 30 (thirty) days of the date of Seller's notification in writing of the existence of the default, either to rectify such default if it is reasonably capable of being rectified within such period or, if the default is not reasonably capable of being rectified within such period, to take action to remedy the default or
(b) The Buyer compounds with or negotiates for any composition with its creditors generally;
i. Being an individual the Buyer dies or commits an act of bankruptcy; or
ii. Being a company, the Buyer calls any meeting of its creditors or have a receiver or administrator appointed or enters any liquidation.
13.2 In the event of any such termination, the Seller shall in addition to exercising its rights to repossession of the Products, be entitled by notice in writing to the Buyer to declare immediately due and payable any amounts outstanding from the Buyer to the Seller under this or any other agreement.
13.3 The provisions of 13.1 and 13.2 above and the exercise by the Seller of its rights thereunder are without prejudice to any other rights of the Company.
14. GOVERNING LAW AND JURISDICTION
14.1 This Agreement shall be governed and construed in accordance with the laws of England and Wales and shall be subject to the non-exclusive jurisdiction of the courts in London, UK.
15.1 No waiver by either party with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy, unless such waiver be expressed in writing and signed by the party to be bound.
15.2 If any clause, sub-clause or other provision of the Agreement is invalid under any statute or rule of law, such provision, to that extent only, shall be deemed to be omitted without affecting the validity of the remainder of the Agreement.
15.3 Buyer shall not be entitled to assign its rights or obligations hereunder without the prior written consent of Seller.
15.4 All notices and claims in connection with the Agreement must be in writing.