Terms and Conditions
NGS Terms & Conditions NGS Standard Terms & Conditions for Sale & Supply of Goods & Services
DEFINITIONS
In this document the following words shall have the following meanings:
A. "Buyer" means the organisation or person who buys Goods or Services;
B. “Consumable” means those items which would be intended to be used up relatively quickly and then replaced;
C. "Goods" means the items supplied to the Buyer by the Seller;
D. “Representative” means a manager or director directly employed by the Seller, which expressly excludes an agent or subcontractor;
E. "Seller" means NGS Trading & Holdings ltd or any of its subsidiaries; and
F. "Services" means any Service supplied to the Buyer by the Seller
GENERAL
1. these terms & conditions shall apply to sales of Goods & Services by the Seller to the Buyer to the exclusion of all other terms and conditions referred to, offered or relied on by the Buyer whether in negotiation or at any stage in the dealings between the parties, including any standard or printed terms tendered by the Buyer, unless the Buyer specifically states in writing, separately and expressly from such terms, that it wishes such terms to apply and this has been agreed by the Seller in writing expressly. any variation to these terms and conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed expressly in writing by the Seller.
2. no Representative, employee or agent is authorised to conclude any binding contract on behalf of NGS Trading & Holdings ltd or its subsidiaries with a contract value of more than ten thousand pounds with another party without the express written consent of a company director, unless the Representative is a company director.
QUOTATION, DEPOSIT, PRICE AND PAYMENT
3. in the event that a quotation is provided by the Seller, such quotation is provisional and may be altered to take account of any change taking place between the date of quotation and the Seller’s acceptance of the Buyer’s order and in any event the quotation shall expire 7 days after the date of its issue unless otherwise agreed by the Seller expressly in writing.
4. any deposit paid by the Buyer is non-refundable unless condition 5 or condition 16 below applies.
5. non-delivery for any single item which has a value in excess of fifty thousand pounds does not entitle the Buyer for a refund of their deposit or any advance payment unless such delay in delivery exceeds six months, unless the item is a Consumable item or an item of a lesser value than fifty thousand pounds, in which case a refund would be made after a reasonable period of non-delivery as determined by the Seller.
6. the Buyer will pay any amount immediately upon it falling due, unless otherwise agreed in writing expressly by the Seller.
7. payment of all invoices will be made by the Buyer to the Seller in full as invoiced, no later than the due date as per the invoice or express agreement in writing.
8. all prices are exclusive of vat or any other applicable costs, unless otherwise agreed expressly in writing between the Buyer and Seller.
9. the Buyer will pay any and all tax, duties and other government charges payable in respect of the Goods & Services in accordance with the relevant country’s legislation in force at the tax point and all other taxes and duties payable in connection with the supply of the Goods & Services to the Buyer and its export and import into any territory.
10. in the event of non-payment or late payment by the Buyer, The Seller will be entitled, without limiting any other rights and remedies it may have, to:
I. suspend delivery of Goods and the Services and/or cancel any of its outstanding obligations under the contract without incurring any liability whatsoever to the Buyer;
II. retain any deposit paid by the Buyer;
III. to charge interest on any outstanding amount accruing from time to time at the rate of 8% per annum above the base rate from time to time of Barclays Bank plc or the amount prescribed in the Late Payment of Commercial Debts (Interest) Act 1998 (whichever is greater) from the due date until the outstanding amount is paid in full;
IV. all Goods remain the property of the Seller until payment is received by the Seller in full, to the Seller’s full satisfaction; and V. attend any premises or property where the Goods maybe to collect the Goods which belong to the Seller and use reasonable and necessary force to gain entry into such premises or property and not incur any liability whatsoever for any damage thereby caused.
11. the Buyer will have no right whatsoever in any circumstances to set off any amounts owing to it by the Seller against unpaid amounts due to the Seller.
12. the Seller shall have the right to withdraw or refuse credit facilities or to require from the Buyer cash on or before delivery or security for payment and to withhold delivery until such requirement is complied with.
13. any claim or query by the Buyer in respect of the invoiced price of the Goods or Services must be notified to the Seller by the Buyer immediately and in any event no later than 72 hours.
SAMPLE
14. where a sample or demonstration of the Goods or Services is shown to and/or inspected by the Buyer, the parties hereto accept that such a sample and/or demonstration is representative in nature and the bulk of the order may differ slightly. The Seller is entitled to provide a reasonable substitute.
DELIVERY & ACCEPTANCE
15. unless otherwise agreed in writing, delivery shall take place when the Goods are passed to the carrier or shipping agent or to the Buyer's representative, whichever shall occur first. the Buyer will ensure that adequate and safe facilities and procedures exist for receipt of the Goods & Services at its premises at the time of delivery by the Seller or its agent or carrier. subject to the delivery companies' one metric tonne limit policy, it could mean that the top layer of bags needs to be hand balled off the pallet before the tail lift is used so as to bring the pallet within the one metric tonne limit. It is the Buyer’s responsibility to arrange manual labour to hand ball off the above mentioned extra weight if the driver of the delivery company requests same. This does not apply to customers who unload using a suitably rated forklift.
16. all delivery dates are quoted in consideration of all circumstances known at the time, but the Seller reserves the absolute right to alter them notifying the Buyer as soon as is reasonably practicable. The Seller does not accept any liability for any direct, indirect, consequential or economic loss or damage due to delay in delivery however caused. An order for any single item which has a value in excess of fifty thousand pounds, cannot be cancelled or varied by the Buyer for any reason including delay of delivery unless the delay or non-delivery exceeds six months from the date of estimated delivery provided by the Seller, and only in these specific circumstances shall any deposit or advance payment be refundable. In cases of the value of item being lesser than fifty thousand pounds then the Seller would refund any deposit or advance payment if delivery did not take place within a reasonable period, as determined by the Seller.
17. the Buyer will not be entitled to delay delivery or refuse to accept delivery, however, if in the opinion of the Seller, the Buyer: I. is not ready to receive the Goods or Services on the day intended; II. fails to give the Seller adequate instructions; III. fails to collect the Goods intended for collection; or IV. fails to comply with the provisions of condition
17.II above in whole or in part then the Buyer shall be liable for any loss occasioned to the Seller by its neglect, refusal or inability to take delivery of the Goods or Services and also for such costs and expenses as the Seller may incur in storing the Goods and, if applicable, re-delivering the same. In addition, the Seller shall have the right to sell the Goods at the best price readily obtainable and (after deducting all reasonable expenses) charge the Buyer for any shortfall below the price under the contract.
18. the Buyer will promptly notify the Seller in writing in the event that the Goods do not arrive within three days of their anticipated receipt.
19. the Buyer will inspect the Goods or Services within three days of receipt and failure to notify the Seller in writing of any defect or any other proper objection to the Goods or Services within such a period shall constitute acceptance of the Goods or Services by the Buyer.
20. where upon delivery the Seller requires notes, tickets or any other such documents to be signed by the Buyer confirming satisfaction with the Goods or Services, then the right to any objection (under condition 19 above) to the Goods and/or Services shall have been waived.
TITLE
21. title in the Goods shall not pass to the Buyer until the Seller has been paid in full for the Goods.
RETURN OF UNUSED GOODS
22. all Goods are sold on a firm sale basis, i.e. the Seller will not take back any goods not required or sold by the Buyer, unless otherwise agreed expressly in writing, in which case conditions 23 to 25 below shall apply.
23. any returns must be authorised by a Representative of the Seller before any credit will be given.
24. where the Seller agrees to accept the return of goods that are not damaged the Buyer will be responsible for the cost of carriage and will ensure that they are carefully packaged to avoid any damage in transit. The Seller will not be obliged to accept any goods that are damaged in any way.
25. credit of amounts due or paid in will only be given for Goods that are in a proper saleable condition.
WARRANTY AND LIMITATIONS OF LIABILITY
26. the Seller shall not be liable for any loss or damage suffered by the Buyer in excess of the contract price or fifty thousand pounds, whichever is less.
27. nothing contained in these terms and conditions shall be construed so as to limit or exclude the liability of the Seller for death or personal injury as a result of the Seller's negligence or that of its employees or agents.
28. notice of non-conforming or faulty Goods must be made to the Seller within three days of receipt of the Goods. This Goods warranty limits the Seller’s liability to the repair or replacement of the parts only.
29. for any Goods supplied where any one item is valued in excess of fifty thousand pounds a twelve month warranty period shall be provided by the Seller from the date of delivery.
30. warranty is strictly subject to conditions 33 & 34 below being adhered to.
31. warranty does not pass to successive owners of the Goods supplied by the Seller.
32. the Seller will not be liable to the Buyer for any loss of profit, loss of revenue, loss of data, loss of opportunity, loss of business and loss of goodwill (in each case whether direct or indirect) or for any indirect, or consequential loss, damage, costs, expenses and other claims (whether caused by the negligence of the Seller, its servants, agents sub-contractors or otherwise) which arise out of or in connection with the Goods or Services or in any other way under the contract.
33. the Seller will not be liable under the warranty for any damage or loss arising from: I. wear and tear; II. wilful damage; III. Buyer’s negligence; IV. Buyer’s incompetence; V. incorrect working conditions i.e. humidity and temperature control of the environment; VI. failure to follow instructions on use or operation of Goods; VII. failure to follow instructions in relation to servicing of any Goods; VIII. failure to follow instructions in relation to maintenance of any Goods; IX. failure of suitably qualified trained personnel to operate the Goods;
34. all warranties, conditions, terms, undertakings and obligations on the part of the Seller implied by statute, common law, custom, trade usage, course of dealing or in any other way are, to the extent permitted by law excluded (except for the implied warranty or title).
35. the Buyer warrants that it has not been induced to enter into the contract by any representation or by any warranty except those expressly made in writing.
36. the Buyer waives all claims for breach of any warranty and all claims for any misrepresentation, which is not expressly agreed in writing.
37. the Buyer will ensure that the specification of the Goods ordered is suitable and safe for the intended use or environment of use.
38. the Buyer will handle the Goods in a suitable and safe manner and will comply with any instructions supplied to it by the Seller.
39. the Buyer will also pass onto users (including purchasers and users of other products and equipment in which the Goods are used) all relevant safety information & instructions for use.
INTELLECTUAL PROPERTY RIGHTS
40. all intellectual property rights produced from or arising as a result of the performance of this agreement shall, so far as not already vested, become the absolute property of the Seller, and the Buyer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of appropriate instruments or the making of agreements with third parties.
INDEMNITIES
41. the Buyer shall fully indemnify the Seller in respect of: I. any claim which may be made against the Seller that the use to which the Goods are put constitutes a breach of section 6 Health and Safety at Work Act 1974, or any other relevant United Kingdom or overseas safety legislation; II. arising out of the failure by the Buyer to observe these terms & conditions; and III. any legal costs incurred by the Seller in enforcement of any of these terms & conditions or any other terms within the contract between the Buyer and Seller.
FORCE MAJEURE
42. the Seller shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its control, including but not limited to:
I. acts of God;
II. shipping;
III. transport;
IV. strikes;
V. industrial action;
VI. trade disputes;
VII. lock outs;
VIII. accidents;
IX. war;
X. fire;
XI. flood;
XII. breakdown of plant;
XIII. breakdown of machinery;
XIV. breakdown of equipment;
XV. shortage or unavailability of raw materials or parts;
XVI. power outage;
XVII. power shortage;
XVIII. unusually adverse weather conditions;
XIX. shortage or unavailability of qualified staff
43. where force majeure applies, the Seller shall be entitled to a reasonable extension of its obligations. If the delay persists for such time as the Seller considers unreasonable, it may, without liability on its part, terminate the contract. In the case of Goods with the value in excess of fifty thousand pounds, the Seller puts the Buyer on express notice that a period of less than six months will not be considered as unreasonable under this clause.
RELATIONSHIP OF PARTIES
44. nothing contained in these terms & conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these terms and conditions shall be deemed to construe either of the parties as the agent of the other.
ASSIGNMENT AND SUB-CONTRACTING
45. the contract between the Buyer and Seller for the sale of Goods shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Buyer, without the prior written consent of the Seller. The Seller may withhold consent in its absolute discretion.
WAIVER
46. the failure by the Seller to enforce at any time or for any period any one or more of the terms & conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all these terms & conditions.
SEVERABILITY
47. if any term or provision of these terms & conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these terms & conditions had been agreed with the invalid, illegal or unenforceable provision deleted.
GOVERNING LAW AND JURISDICTION
48. any agreement between the Seller and Buyer shall be governed by and construed in accordance with the laws of england and the parties hereby submit to the exclusive jurisdiction of the english courts in central london only.