1. Definitions; Interpretation.
Throughout these terms and conditions, (a) the “Company” means Northern Drives & Controls, Inc., a Texas corporation, (b) the “customer,” the “purchaser” or the “buyer” is to be taken to mean any person, business, company or organization to whom the Company directs a quotation or with whom it is involved in any contract of sale of goods or
provision of services, and (c) the “contract” means the combination of the quotation directed by the Company to the buyer and these terms and conditions. These terms and conditions are to be construed so as to provide the greatest benefit and protection to the Company and without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing an instrument to be drafted. The headings in these terms and conditions are for reference only and shall not affect the interpretation of these terms and conditions.
2. Statutory and Other References.
Unless the context otherwise requires, references in these terms and conditions to a statute mean such statute as amended from time to time and include any successor legislation thereto and any regulations promulgated thereunder.
3. Time of the Essence.
Time shall be of the essence in these terms and conditions.
4. Scope of Agreement.
These terms and conditions constitute the sole and entire agreement of the parties with respect to the subject matter contained herein and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. These terms and conditions constitute the only conditions upon which the Company is willing to supply goods and services to any customer to whom a quotation, acceptance of order or contract is addressed. These terms and conditions shall prevail over any terms and conditions in the purchaser's order or such other documents as may be furnished by the customer except where specifically agreed to the contrary in writing by a duly authorized executive of the Company, and any subsequent variations, amendments, modifications, deletions or alterations must be similarly agreed.
5. Non-reliance.
The buyer hereby acknowledges and agrees that the buyer has not relied, is not relying, and disclaims reliance on any and all express or implied representations or warranties, whether written or oral, made by the Company, its employees or agents, other than the express representations and warranties of the Company set forth in these terms and conditions, if any, which disclaimed representations and warranties include, without limitation, any representations made prior to the formation of the contract, including, without limitation, any literature, descriptions, specifications, oral or written statements or any combination thereof. The buyer hereby acknowledges and agrees that the buyer has not entered into this contract on the basis of any other representation or warranty, made orally or in writing, by the Company, its employees or agents and that the buyer relied on the buyer's own judgement alone when entering into this contract.
6. Disclaimer.
THE COMPANY MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. FURTHERMORE NO LIABILITY WHATSOEVER SHALL BE INCURRED BY THE COMPANY IN RESPECT OF ANY EXPRESS TERM OF THE CONTRACT THAT RELATES OR REFERS IN ANY WAY TO QUALITY OF THE GOODS, THE FITNESS OF THE GOODS FOR ANY PURPOSE WHATSOEVER OR CORRESPONDENCE OF THE GOODS TO ANY DESCRIPTION.
7. No Consequential or Indirect Damages.
IN NO EVENT SHALL THE COMPANY BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, RELATING
TO, OR IN CONNECTION WITH ANY BREACH OF THE CONTRACT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
8. Maximum Liability.
IN NO EVENT SHALL THE COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO THE COMPANY PURSUANT TO THE CONTRACT.
9. Exclusive Remedy.
In the event of any damage to or defect in goods, the Company may, at its discretion, repair any damage or defect or replace any defective goods, and, in such case, such repair or replacement shall be the Company's sole liability and the buyer's sole and exclusive remedy for such damage or defect.
10. Variation and Tolerance.
The buyer, in appropriate circumstances, is to accept reasonable tolerance, and the Company reserves the right to make alterations to the goods to be provided under the contract where it has good reason to do so and where the Company considers it reasonable in all circumstances to do so.
11. Delivery.
Contract dates for the delivery or collection of the goods are to be accepted by the buyer as estimates only, and no action will lie for failure on the Company's part, however caused, to meet any such dates. The Company reserves the right to make any delivery charges that may be reasonable in the circumstances.
12. Failure to Accept Delivery.
Where the buyer fails to accept delivery of the goods, or fails to arrange for their collection, the Company may, without prejudice to any other right or remedy it may have, make such of the following provisions as it considers appropriate:
- Store the goods at the buyer's expense;
- Insure the goods at the buyer's expense;
- Make additional charges for any transport costs;
- Proceed to sell the goods, on giving written notice to the buyer, and any loss suffered by the Company shall be a debt owed by the buyer to the Company as though it were part of the invoice price;
- Maintain a lien on any property of the buyer's with a right to sell any such property, which is in the Company's possession, until such time as the buyer has paid in full all amounts due. Where the Company exercises its right to sell, it will account to the buyer for any surplus after allowing for all amounts outstanding and for any costs and expenses incurred in relation to the goods. The foregoing provisions are also to apply where delivery or collection of the goods has been delayed or deferred at the buyer's request, even though the Company may have agreed to such a request.
13. Effect of Delivery.
Where the goods have been received by the buyer, whether or not such receipt is acknowledged in writing, the buyer hereby agrees that on receipt the buyer will be deemed to have examined the goods and to have accepted that they meet fully the obligations imposed by the contract on the Company.
14. Product Information.
Any information provided for the buyer by the Company and relating to the use or suitability of the contract goods, whether requested by the buyer or not, is to be accepted by the buyer as accurate and suitable for the purpose in question and will rise to no liability on the Company's part, save where negligence on the part of the Company leads to death or personal injury. Where specifications, drawings, etc. are provided by the buyer, the buyer accepts full responsibility for the accuracy of such information, and the Company is not to be held in any way liable where such information proves to be erroneous or inaccurate.
15. Cancellation.
The buyer's obligation under the contract are absolute but where the Company is prepared to accept a contract cancellation at the buyer's request the Company will have a right to make a charge to cover handling, administrative costs and any other costs that might reasonably be incurred.
16. Customer's Handling and Treatment of Goods Supplied.
Where goods are supplied to the customer, or work is undertaken on the customer's goods, the Company accepts no liability where subsequent treatment, fitting or any misuse of the goods by the customer causes such goods to become in any way damaged or defective.
17. Assignment.
Where the Company requires the contract, or any part of it, to be carried out by an assignee, sub-contractor or any other party so nominated, the buyer will co-operate fully in the performance of the contract. The buyer also agrees that no liability shall fall on the Company in any way whatsoever arising from, or related to, any goods provided by and work undertaken by such third party and that any remedies the buyer wishes to pursue must be pursued directly with the third party. The contract cannot be assigned by the buyer without the prior consent of the Company in writing. Where the Company consents to such assignment, the buyer will nonetheless remain fully liable and will be required to ensure the due performance of the contract.
18. Passing of Risk.
Without prejudice to the provisions of section 19, the risk in the goods supplied to the buyer shall pass to the buyer when the goods are unconditionally appropriated to the contract by either party.
19. Reservation of Title.
The property in the goods does not pass until the purchaser has paid the entire invoice under any contract with the Company. Until such price is paid in full, goods held in possession are held by the buyer as bailee on the Company's behalf.
As bailee on the Company's behalf, the buyer will ensure that:
- The goods will be stored separately and be identifiable as belonging to the Company;
- The goods are covered by the buyer's policy of insurance, and the buyer will assign the benefits of such policy to the Company at its request;
- Any monies received by the buyer for goods sold or supplied to the buyer by the Company will be retained in a separate account, and the buyer will hold such monies as trustees on the Company's behalf;
- The goods are maintained in a usable condition;
- The Company shall, subject to written notice, be entitled to enter any premises where the contract goods are stored and take possession of such at any time before full payment is received;
- Where the contract goods, or any part of such goods, are incorporated with any other goods, the buyer will make every reasonable endeavor to ensure that the title in such goods (or in goods that may result from the incorporation of the contract goods), passed to the Company and theforegoing provisions of this section shall be considered to apply to such goods.
Where goods are produced to the buyer's specification, directions, or instruction or where any goods are to be prepared in any way on the buyer's behalf, the title in such goods shall not pass before the buyer has paid the entire invoice price under the particular contract or under any other contract between the Company and the buyer.
Reference to invoice price is a reference to the price to be charged to the customer on due performance of the contract, and shall include any further sums the Company are entitled to claim.
20. Product Hazard Information.
The buyer is required to advise the Company as a matter of urgency in relation to the suitability of the goods for the purpose they were intended or on any matters that may affect their safe use or incorporation in other finished products. Where the occasion arises the buyer is required to ensure that any interested authority or organization is similarly advised. To assist in tracing products subject to any subsequent form of enquiry the buyer is required to keep necessary records of transactions and to make such information available to the Company where so requested. The buyer shall further ensure that all reasonably practicable steps are taken to eliminate any risks to health and safety to which use or storage of the goods could give rise. Where the customer has a complaint about goods or work undertaken, the customer must notify the Company's authorized personnel without delay and produce the goods for inspection. Only after inspection will the Company consider recompense or replacement. The customer is required to cooperate fully with the Company in the handling and investigation of such complaints.
21. Customer Design, Product Recall etc.
Goods manufactured to the buyer's design shall not give rise to any liability on the part of the Company for any loss or damage, direct, indirect, consequential or otherwise, attributable to such design and the buyer undertakes to indemnify the Company against claims relating to infringement of patent or other intellectual property rights that may be involved in such design. The buyer's design shall further comply with any statutory or common law requirements in respect of design and manufacture. In the event of it being necessary to recall goods supplied by the Company, due to a product defect, it shall be the buyer's duty to fully cooperate in any product recall campaign which might be launched by an appropriate party, whether such campaign is required by law or not.
The buyer will also undertake to defray the cost of any such campaign or to recompense the Company for any expense it may incur, where the Company makes a request in writing. The buyer will also take prompt action and accede to any reasonable request from an interested party to secure the withdrawal of the goods, or goods incorporating the goods, from sale or supply.
22. Payment.
Payment is required within 28 dates of invoice date and if full payment is not made by the due date interest shall be charged on any outstanding amount at the lesser of (a) the rate of 4% per annum above Barclays Bank base lending rate accruing daily and (b) the maximum rate permitted by law. The Company shall also have the right to withhold further supplies or service under this or any other contract.
23. Recovered Material and Installments Deliveries.
The Company shall have a right to retain any materials removed in repair or service of the buyer's goods. It shall have a further right, notwithstanding any rule of law which might otherwise be applicable, and notwithstanding any agreement to the contrary, to supply any relevant goods in installments. It is further agreed that, where goods are so supplied whether or not with the buyer's agreement, any breach or infringement by the Company affects that installment only.
24. Governing Law.
The contract and all related documents, and all matters arising out of or relating to the contract, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of Texas, United States of America, without giving effect to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
25. Submission to Jurisdiction.
Any legal suit, action, or proceeding arising out of or relating to the contract or the transactions contemplated hereby shall be instituted in any United States federal court or state court located in the state of Texas in the City of Dallas and County of Dallas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by certified mail shall be effective service of process for any suit, action, or other proceeding brought in any such court. The parties irrevocably and unconditionally waive any objection to the laying of venue of any suit, action, or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action, or proceeding brought in any such court has been brought in an inconvenient forum.
26. Arbitration.
The parties may agree to refer all matters arising under or out of this contract to arbitration.
27. Waiver.
No waiver by any party of any of the provisions of the contract shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from the contract shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
28. Force Majeure.
In the event of delivery being delayed by fire, accident, strikes, lockouts, delays in receipt of materials or bought-in goods or any other cause beyond the reasonable control of the Company, a reasonable extension of time of delivery shall be granted and the buyer shall pay such reasonable extra charges as shall have been occasioned by the delay. However the Company shall have the right to suspend or terminate the contract on giving written notice. During any period of such suspension the Company shall have the right to terminate the contract, subject to further notice in writing. Where the contract is suspended by the Company all obligations imposed on either party by the contract shall be held in abeyance for the period of such suspension. Where the Company elects to terminate the contract such termination shall be without prejudice to the Company and shall not affect liabilities on the buyer's part which fell due before termination.
29. Returnable Packaging.
Where the Company's goods are delivered in returnable packaging the buyer will be charged the full price of such packaging where it is not returned within a reasonable time or on request by the Company.
30. Delivery Discrepancies.
The buyer must give notice of any delivery discrepancies at the time of delivery; otherwise, no claims in relation to such discrepancies can be entertained. Claims for alleged non-delivery must be made within 48 hours of such time as the goods ought reasonably to have been delivered.
31. Data Protection.
Where the Company enters any detail of a contract concerning living individuals on a computer database, the buyer hereby gives the buyer's consent thereto and consents to the further use or disclosure of such details.
32. Product Inspection.
The buyer is required to make appropriate inspection of the goods on delivery and is required to ensure that they are in such condition that no risk or hazard could arise from their use. In the event of any such possibility arising, the buyer is required to notify the Company, without delay.
33. Effect of Insolvency etc.
The Company may terminate or suspend the contract, by notice in writing without liability to itself, but without prejudice to liability on the buyer's part accruing before such termination or suspension and treat the buyer in breach of contract, in the following circumstances:
- Where the buyer ceases to pay the buyer's debts in the ordinary course of business or cannot pay the buyer's debts as they become so due;
- Where the buyer has a receiver or administrator appointed for the whole or part of the buyer's assets;
- Where third parties cease, with apparent good cause, to regard the buyer as of good financial standing; or
- Where the Company has reasonable cause to suspect that all or any of the above are likely to occur.
Where the Company has elected to suspend the contract, it may at any later date, by notice in writing, elect to terminate the contract with results as aforesaid.
34. Service of Notice.
Any notice served under the foregoing terms, if delivered to the buyer's last known address or principal place of business, shall be treated as validly served. This shall apply to all notices in writing including notice by telex or facsimile transmission and where sent through the post such notices shall be regarded as received within two days of dispatch and received simultaneously where sent by telex and facsimile transmission. Proof of dispatch is to be treated as proof of receipt.
35. Severability.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Company:
NDC is the trading name of Northern Drives and Controls, Inc
Registered Office:
12700 Park Central Drive,
1400 Ste,
Dallas,
Texas,
75251,
United States.
Company Registration Number:
Northern Drives and Controls Inc is a company registered in Texas with company number 87-3580798
Contacts:
+00(1) 972 680 7210, info@ndc-us.com
Version:
QCD1018-4 v.A 0223