TERMS AND CONDITIONS
Unless otherwise stated in writing the following conditions shall apply.
All goods are supplied by us subject to these Conditions, which supersede any earlier sets of Conditions appearing in our catalogues or elsewhere and which shall override any items or conditions stipulated, incorporated or referred to by the Purchaser, whether in the order or in any negotiations. The relaxation or waiver by us of any of these Conditions on any occasion shall act merely as a waiver on that occasion and shall not affect our right to enforce any of these Conditions on any subsequent occasion.
Any variation of these Conditions must be confirmed in writing by us and will not otherwise be valid. Any description given by us of the goods is given by way of identification only and the use of such description shall not constitute the contract .
TERMS OF CONTRACT
Unless the context clearly requires otherwise, as used in these Terms and Conditions the terms "seller", "our", "we", "us" and the like, mean and refer to Lewmax Programming Ltd., and the terms "buyer", "purchaser", "your", "you" and the like, mean and refer to the buyer.
Our acceptance of your Order is conditioned upon your agreement that, except for your specification of part numbers, quantities, method of packing and shipment, and designation of carrier, and our inclusion of any typed terms on the face of this Order Acknowledgement, these Terms and Conditions will apply exclusively to this Order.
Our delay or failure to object to any terms or conditions contained in a communication from you, including your original order paperwork, will not be a waiver of these Terms and Conditions. In all cases our Terms and Conditions of sales will override any Terms and Conditions of purchase set out by the buyer and our proceeding with your order will be in accordance with these terms.
Prices stated or quoted on the face of our acknowledgements are in the currency indicated, and are based on shipment Ex- Works. United Kingdom. Taxes, duties and other government assessments are extra and will be added to the price of the goods in our invoice.
Any time or date quoted by us for delivery is given as an indication only. Time shall not be the essence of any contract. The Seller shall not be liable to make good any damage or loss whether arising or directly or indirectly out of delay in delivery. Unless otherwise agreed in writing, the Seller shall be entitled to make partial deliveries and the terms and conditions herein contained shall apply to each partial delivery.
Deviations in quantity of the goods delivered from that stated in the contract shall not give the Purchaser any right to reject the goods or to claim damages and shall be obliged to accept and pay at the contract rate and time for the quantity of the goods delivered.
Where a credit account has been established with the Seller payment must be made for each installment of goods delivered 30 days after the end of the month of delivery.
The Seller in unfettered judgement may withdraw at anytime credit facilities from the Purchaser. Payment shall not be withheld on account of any claim by the Purchaser against the Seller.
The Seller reserves the right to suspend deliveries where payment for any order, related or otherwise, has not been made by the due date and remains outstanding.
If at anytime any sum of money becomes payable by the Seller to the Purchaser, the Seller may set off against such sum any amount then due or which may at any time thereafter become due, to the Seller from the Purchaser under the contract or any other contract order or transaction between the Seller (or any such other company) and the Purchaser.
Without prejudice to our other rights, interest at one per cent per calendar month (running from day to day) shall be payable to any payment which is more than 30 days overdue until actual payment.
No contracts shall be invalidated because of printing or clerical errors.
TITLE AND RISK
Legal title to the goods shall remain with the Seller until such time as the Seller has received payment of the price of the goods (where the goods are supplied) and of the price of any other services previously or subsequently supplied by the Seller to the Purchaser whereupon such title shall pass to the Purchaser.
In so far as the goods may be delivered to the Purchaser prior to the time when title thereto passes to the Purchaser as aforesaid the Purchaser shall until such time hold the goods as the fiduciary agent and bailiff of the Seller and shall accordingly remain liable to account to the Seller for the goods or, if the same shall be sold by the Purchaser (which the Purchaser shall be entitled to do as the fiduciary agent of the Seller but, as between the Purchaser and the Purchaser's customer, only as principal and without creating any relationship, disclosed or undisclosed, between the Seller and such customer), for all of the proceeds, tangible and intangible (and including without limitation insurance proceeds and proceeds of proceeds), thereof.
The Purchaser shall, as trustee for the Seller, pay such proceeds into a bank account separate from all other bank accounts and other monies and assets of the Purchaser and of third parties. The Purchaser shall store the goods separate from any other goods of the Purchaser and of third parties and shall identify the goods as the property of the Seller. The Purchaser shall not remove any identifying marks placed on the goods by the Seller.
Not withstanding the retention by the Seller of legal title to the goods. (i) risk in the goods shall pass to the Purchaser on delivery to the Purchaser's carrier or carrier arranged by the Seller on behalf of the Purchaser, and the Purchaser shall arrange for the Seller's interest in the same to be noted on all relevant insurance policies, (ii) the Seller shall be entitled to maintain an action against the Purchaser for the price of the goods or any part thereof, and (iii) the Purchaser shall be deemed to have accepted all goods upon their delivery by the Seller to the address specified in the order.
The Purchaser may exercise his right to sell the goods as the fiduciary agent of the Seller in the usual course of the Purchaser 's business but such right: may be revoked at any time by the Seller giving notice to that effect if the Purchaser is in default for longer than seven days in the payment of any sum whatsoever due to the Seller (whether in respect of the goods or of any other goods or services supplied at any time by the Seller to the Purchaser or for any reason whatsoever) or if the Seller has bona fide doubts as to the solvency of the Purchaser: and (ii), shall automatically cease if a receiver, manager or administrator is appointed over the assets, undertaking or property of the Purchaser, or a winding-up or administration order against the Purchaser is made or petitioned, or any petition or order in bankruptcy against the Purchaser is presented or made, or the Purchaser goes into voluntary liquidation (otherwise than for the purposes of reconstruction or amalgamation while solvent) or calls a meeting of or makes arrangements or compositions with creditors.
Upon determination of the Purchaser's rights of sale the Purchaser shall place the goods at the disposal of the Seller (who shall be entitled to enter any premises of the Purchaser for the purpose of removing the goods and to remove the goods from the said premises) and/or, as the case may be, pay to the Seller the proceeds then held by the Purchaser as trustee for the Seller in accordance with Conditions above.
TRANSIT AND RISK
Risk shall pass on delivery / collection of the goods to the carrier (road carrier, freight carrier, or any carrier arranged by or acting on behalf of the Purchaser, or the Purchaser in person) whether the carrier has been engaged by the Seller or Purchaser. Risk passes to the Purchaser as soon as the goods are removed by the carrier (as described above) from the Sellers premises.
Inspection and Acceptance. Goods will be deemed to have been accepted by you unless we receive written notice to the contrary specifying the nature of the non-conformance within two weeks after the date you receive the shipment.
We reserve the right to examine on your premises any goods you claim to be non-conforming. Charges may be imposed to reimburse us for our costs if we find your claim to be unsupported, or for re-screening of conforming goods
We warrant that the data we program into the goods, at time of delivery, conforms to the verification samples delivered and accepted by you previously. Product found not to conform to this verification and reported in writing to us within a period of thirty days from date of delivery from us will be eligible for replacement, repair or credit as set forth below in this section 7.
This warranty will not apply (i) in cases where the goods have been used, incorporated or fitted to a printed circuit board, suffered misuse, abuse, neglect, alteration, accident, repair, improper installation, improper testing or the like after delivery; or (2) to goods not programmed by us; or (3) to goods for which claims are being made by anyone other than you. This warranty will not be enlarged by our having given you technical assistance regarding the goods. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
To obtain a remedy for defective or non-conforming goods failing to meet the foregoing warranty, the following conditions must be met: (i) you must notify us on discovery of the deficiency in writing within fourteen days from our delivery to you, including a reasonably detailed explanation of it, (ii) you must return the goods to our plant promptly on receipt of written authorisation by a Director or Manager of Lewmax Programming Ltd, at your risk and expense, and within the required return period specified above, and (iii) the claimed deficiency must be present and verified by us and not found to have been attributable to a disqualifying event.
If all of these conditions are met, we will either replace or repair the goods having the deficiency, or credit your account for the amount you paid us for them, at our option, and in any of these events.
This will constitute our exclusive liability and your sole remedy for breach of our product warranty, and we will have a reasonable time in which to provide the remedy. IN NO EVENT WILL WE BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF WARRANTY OR ANY OTHER REASON RELATING TO THIS ORDER. UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR ANY COSTS OTHER THAN REPLACEMENT OF THE FAULTY GOODS PROGRAMMED. THE BUYER IS RESPONSIBLE FOR TESTING THE CIRCUIT BOARD FOR WHICH THE PRODUCT IS PROGRAMMED AND HENCE DISCOVERING ANY FAULTS DUE TO FAULTY PROGRAMMING AT THAT STAGE. THIS LIABILITY WILL ONLY EXTEND TO FAULTY PRODUCT SHIPPED WITHIN THE PREVIOUS 30 DAYS OF US BEING MADE AWARE OF THE FAULT BY THE BUYER
We will not be liable for any delay in performance or failure to perform an obligation under this Order attributable to an unforeseen circumstance or a cause beyond our reasonable control. These are circumstances or causes generally understood to be within the meaning of force majeure. During the period of the contingency, we may suspend delivery of goods and services in connection with this Order, and if shortages of goods ensue, we may allocate production of the goods among our customers. We will endeavour to resume performance by seeking reasonable alternatives to overcome the contingency.
Cancellations. If you default in your performance of any material obligation, we may cancel or suspend further deliveries or terminate your Order. We will be entitled to cancellation charges of 100% for finished goods and work in process. In addition to quantity price adjustments, reflecting volume pricing quoted is based on quantities ordered but cancelled for the default, and all costs, direct and indirect, incurred or committed and not recoverable. In any circumstances cancellations will not be accepted without our written consent to do so.
Limitation of Liability. You acknowledge and agree that we will not be liable for special, incidental or consequential damages, whether for re-procurement costs, for loss of anticipated profits, for loss of use, or for any other reason concerning the goods or any other performance issue under this acknowledgement.
Where software used in the goods is furnished by or for you and not created by us, we will have no liability for any use of it, or errors contained in it, or claim of infringement of copyright or other intellectual property right as a consequence of its publication, distribution, sale or use.
You agree that you will defend and indemnify us and hold us harmless from and against any such claim, loss, damage, costs (including but non limited to attorneys' fees) and awards attributable to our having supplied the software to or for you. If we have created the software for you then the separate Lewmax Design terms and conditions will apply.
U.S. EXPORT CONTROL REGULATIONS
The Seller shall in no circumstances be liable for any damage, loss or claim howsoever occasioned by an act or omission on the part of the Purchaser in contravention of any regulations issued by the United States Government concerning the export of goods, services or technology. Any goods supplied by the Seller whose export from the United Kingdom is restricted by any aforementioned regulations shall not be exported by the Purchaser without the prior approval in writing of the relevant authorities concerned with the administration of such regulations.
Neither party will have the right to assign this Acknowledgement or the Order to which it refers, without the prior written consent of the other party, except to a successor in interest to all or substantially all of the assets of the business of the respective party to which this Order relates. But any such assignment will not relieve the assigning party from its obligation to perform according to the contract, if the assignee fails to perform and notice of such failure is given to both it and the assigning party. Except as indicated in this Section 11B, this agreement will inure to the benefit of the respective parties, their successors and assigns.
All notices required or permitted by this Acknowledgement must be in writing and signed on behalf of the party giving the notice, addressed to the party receiving it, and sent by courier, certified mail, facsimile, personal delivery or other recognised manner of delivery, addressed to the respective address set forth on the face of this Acknowledgement. Notices will be effective on date of receipt by the party to whom the notice is given.
C. Entire Agreement: Modifications and Waiver.
This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter of this Order, and merges and supersedes all communications, representations, agreements, understandings, and promises relating to that subject matter. No modification or waiver of the Order will be effective unless made in writing signed by the party to be charged with having given the modification or waiver.
D. Governing Law.
This Order and Acknowledgement will be governed, construed and enforced according to the laws of England.
BREACH AND FINANCIAL CONDITIONS
If any of the Purchaser obligations to the Seller are not fulfilled or if the Purchaser financial condition at any time does not, in the unfettered judgment, justify continuance of the contract on the terms of payment specified, the Seller may without prejudice to any other rights it may have, cancel any outstanding order or suspend any deliveries of any of the goods unless the Purchaser makes such payment for any of the goods ordered as the Seller may require.
If an order is so cancelled or suspended by the Seller or if an order is cancelled or suspended by the Purchaser, the Purchaser shall indemnify the Seller on demand against all losses (including loss of profit), costs (including the costs of all labour and materials used and overheads incurred), damages, charges and expenses arising out of the order and the cancellation or suspension thereof (the Seller giving credit for the value of any such materials sold or utilized for other purposes).
If the Purchaser commits any breach of the terms and conditions of contract of suffers distress or execution or becomes insolvent or commits an act of bankruptcy or enters into any arrangement or composition with his creditors or goes or is put into liquidation (other than solely for amalgamation, or reconstruction while solvent) or if a receiver or administrator is appointed over any part of the Purchaser's business, the Seller may without prejudice to any rights which may have accrued or which may accrue to it terminate the contract.
These conditions and the contract and all matters pertaining thereto shall be governed by English law, and the English Courts shall have jurisdiction in relation thereto and all parties irrevocably submit to the jurisdiction of the English Courts.