Terms & Conditions

 

West Performance General Conditions of Sale

Article 1 – General

1.1   These General Conditions are intended to be applied and incorporated into the specific sale contract entered into by the parties in respect of manufactured goods agreed to be sold by the Seller to the Buyer.  In case of any contradiction between these General Conditions and any specific conditions agreed upon between the parties, the specific conditions shall prevail.

1.2   Any questions relating to the Contract which are not expressly or implicitly settled by the provisions contained in the Contract itself (i.e. these General Conditions and any specific conditions agreed upon between the parties) shall be governed by the laws of England.

1.3   Any reference made to trade terms (such as EXW, FCA, etc) is deemed to be made to the relevant term of Incoterms published by the International Chamber of Commerce.

1.4   Any reference made to a publication of the International Chamber of Commerce is deemed to be made to the version current at the date of conclusion of the Contract.

1.5   No modification of the Contract is valid unless agreed or evidenced in writing.  However, a party may be precluded by his conduct from asserting this provision to the extent that the other party has relied on that conduct.

1.6    The Seller shall not be liable to the Buyer for any indirect or consequential loss (including but not limited to loss of goodwill, loss of business, loss of anticipated profits or savings and all other pure economic loss) arising out of or in connection with this Agreement.

1.7     The Seller will not be liable to the Buyer for any indirect or consequential loss or loss of profit or loss of business arising out of data input errors by The Seller.

Article 2 – Characteristics of the Goods

2.1    It is agreed that any information relating to the goods and their use, such as weights, dimensions, capacities, prices, colours and other data contained in catalogues, circulars, advertisements, illustrations, price lists of the Seller, shall not take effect as terms of the Contract unless expressly referred to in the Contract.

2.2    Unless otherwise agreed, the Buyer does not acquire any property rights in software, drawings, etc. which may have been made available to him/her.  The Seller also remains the exclusive owner of any intellectual or industrial property rights relating to the goods.

Article 3 – Inspection of the goods before shipment

If the parties have agreed that the Buyer is entitled to inspect the goods before shipment, the Seller must notify the Buyer within a reasonable time before the shipment that the goods are ready for inspection at the agreed place.

Article 4 – Price

4.1    If no price has been agreed, the Seller’s current list price at the time of conclusion of the Contract shall apply.  In the absence of such a current price list, the price generally charged for such goods at the time of the conclusion of the Contract shall apply.

4.2   Unless otherwise agreed in writing, the price does not include VAT, and is not subject to price adjustment.

4.3   The price indicated under Article 2 (contract price) includes any costs which are at the Seller’s charge according to the Contract.  However, should the Seller bear any costs which, according to the Contract, are for the Buyer’s account (e.g. for transportation or insurance), such sums shall not be considered as having been included in the price under Article 2 and shall be reimbursed by the Buyer to the Seller.

Article 5 – Payment conditions

5.1    Unless otherwise agreed in writing, or implied from a prior     course of dealing between the parties, payment of the price  and any other sums due by the Buyer to the Seller shall be paid in full before dispatch of goods, unless payment agreed to be made on open account. In which case time for payment shall be 30 days from the date of the invoice.  The amounts shall be transferred, unless otherwise agreed, by teletransmission to the Seller’s bank in the Seller’s country for the account of the Seller and the Buyer shall be deemed to have performed his/her payment obligations when the respective sums due have been received by the Seller’s bank in immediately available funds.

5.2 If the parties have agreed on payment in advance, without further indication, it will be assumed that such advance payment, unless otherwise agreed, refers to the full price, and that the advance payment must be received by the Seller’s bank in immediately available funds before the agreed date for shipment.  If advance payment has been agreed for only part of the contract price, the payment conditions of the remaining amount will be determined according to the rules set forth in this Article.

5.3 If the parties have agreed on payment by documentary credit, then, unless otherwise agreed, the Buyer must arrange for a documentary credit in favour of the Seller to be issued by a reputable bank, subject to the Uniform Customs and Practice for Documentary Credits published by the International Chamber of Commerce and to be notified at least 30 days before the agreed date for shipment.  Unless otherwise agreed the documentary credit shall be payable at sight and allow partial shipments and transhipments.

Article 6 – Interest in case of delayed payment

6.1 If a party does not pay a sum of money when it falls due the other party is entitled to interest upon that sum from the time when payment is due to the time of payment.

6.2 Unless otherwise agreed, the rate of interest shall be 2% above the average bank short-term lending rate to prime borrowers prevailing for the currency of payment at the place of payment, or where no such rate exists at that place, then the same rate in the State of the currency of payment.  In the absence of such a rate at either place, the rate of interest shall be the appropriate rate fixed by the law of the State of the currency of payment.

Article 7 – Retention of title

Unless otherwise agreed, the goods shall remain the property of the Seller until the complete payment of the contract price.

Article 8 – Contractual term of delivery

Unless otherwise agreed, delivery shall be “Ex Works” (EXW).  Risk shall pass to the Buyer immediately when the Seller has made the goods available to the Buyer at his premises.  For the avoidance of doubt, the Seller is not responsible for loading the goods on the vehicle of transport and the Buyer shall bear all costs and risks involved from the point of time immediately before the loading of the goods at the Seller’s premises for transport to the Buyer or to his desired destination.  Loss or damage to the goods after the risk has passed to the Buyer does not discharge him/her from his/her obligations to pay the price, unless the loss or damage is due to an act or omission of the Seller.

Article 9 – Documents

Unless otherwise agreed, the Seller must provide the documents (if any) indicated in the applicable Incoterm or, if no Incoterm is applicable, according to any previous course of dealing.

(c)    conclusion of the Contract; and

(d)    that he/she could not reasonably have avoided or overcome its effects.

12.2     A party seeking relief shall, as soon as practicable after the impediment and its effects upon his ability to perform became known to him/her, give notice to the other party of such impediment and its effects on his ability to perform. Notice shall also be given when the ground of relief ceases.  Failure to give either notice makes the party thus failing liable in damages for loss which otherwise could have been avoided.

12.1     A ground of relief under this Article relieves the party failing to perform from liability in damages, from penalties and other contractual sanctions, except from duty to pay interest on money owing as long as and to the extent that that the ground subsists.

12.2     If the grounds of relief subsist for more than six months, either party shall be entitled to terminate the Contract without notice.

Article 13 – Resolution of disputes

13.1    Unless otherwise agreed in writing, all disputes arising in connection with the present Contract shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules.

13.2    An arbitration clause does not prevent any party from requesting interim or conservatory measures from the courts.

Article 14 – Formation of the Contract

14.1    The following provisions are for the avoidance of doubt as to the formation of the Contract and thus, the time when these General Conditions and any specific conditions agreed between the parties become effective.

14.2    A proposal for concluding a contract addressed to the other party constitutes an offer if it is sufficiently definite and indicates the intention of the offeror to be bound in case of acceptance. A proposal is sufficiently definite if it indicates the goods and expressly or implicitly fixes or makes provision for determining the quantity and the price.

14.3    A proposal other than one addressed to a specific addressee or addressees is to be considered merely as an invitation to make offers, unless the contrary is clearly indicated by the person making the proposal.

14.4    An offer becomes effective when it reaches the offeree.

14.5    An offer, even if it is irrevocable, may be withdrawn if the withdrawal reaches the offeree before or at the same time as the offer.

14.6    Until a contract is concluded, an offer may be revoked if the revocation reaches the offeree before he has despatched an acceptance.

14.7    However, an offer can not be revoked:

(a)    if it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable; or

(b)    if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer.

14.8    An offer, even if it is irrevocable, is terminated when a rejection reaches the offeror.

14.9    A statement made by or other conduct of the offeree indicating assent to an offer is an acceptance.  Silence or inactivity does not itself amount to acceptance.

14.10  An acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror.  An acceptance is not effective if the indication of assent does not reach the offeror within the time  has fixed or if no

Article 10 – Non-conformity of the goods

10.1   The Buyer shall examine the goods as soon as possible after arrival at destination and shall notify the Seller in writing of any lack of conformity of the goods within 7 days from the date when the Buyer discovers or ought to have discovered the lack of conformity.  In any case the Buyer shall have no remedy for lack of conformity if he fails to notify the Seller within 28 days from the date of arrival of the goods at the agreed destination.

10.2    Goods will be deemed to conform to the Contract despite minor discrepancies which are usual in the particular trade or through course of dealing between the parties, but the Buyer will be entitled to any abatement of price usual in the trade or through course of dealing for such discrepancies.

10.3   Where goods are non-conforming (and provided the Buyer, having given notice of the lack of conformity in compliance with Article 10.1 does not elect in the notice to retain them) the Seller shall at his/her option:

(a)      replace the goods with conforming goods, without any additional expenses to the Buyer; or

(b)      repair the goods, without any additional expense to the Buyer; or

(c)      reimburse the Buyer the price paid for the non-conforming goods and thereby terminate the Contract as regards those goods.

10.4   If the Seller has failed to perform his/her obligations under Article 10.3 within 21 days of the notice given by the Buyer, the Buyer may give notice in writing to terminate the Contract as regards the non-conforming goods unless the supply of the replacement goods or the repair is effected within 5 days of the receipt of such notice by the Seller.

10.5   Where the Buyer elects to retain non-conforming goods, he/she shall be entitled to a sum equal to the difference between the value of the goods at the agreed place of destination if they had conformed with the Contract and their value at the same place as delivered, such sum not to exceed 15% of the price of those goods.

10.6   Unless otherwise agreed in writing, the remedies under this Article 10 are exclusive of any other remedy for non-conformity.

10.7   Unless otherwise agreed in writing, no action or lack of conformity can be taken by the Buyer, whether before judicial or arbitral tribunals, after 2 years from the date of the arrival of the goods.  It is expressly agreed that after expiry of such term, the Buyer will not plead non-conformity of the goods, or make a counter-claim thereon in defence to any action taken by the Seller against the Buyer for non-performance of this Contract.

Article 11 – Cooperation between the parties

11.1   The Buyer shall promptly inform the Seller of any claim made against the Buyer by his customers or third parties concerning the goods delivered or intellectual property rights related thereto.

11.2   The Seller shall promptly inform the Buyer of any claim which may involve the product liability of the Buyer.

Article 12 – Force Majeur

12.3     A party is not liable for a failure to perform any of his/her obligations in so far as he/she proves:

(e)    that the failure was due to an impediment beyond his/her control; and

(f)     that he/she could not reasonably be expected to have taken into account the impediment and its effects upon his ability to perform at the time of the time is fixed, within a reasonable time, due account being taken of the circumstances of the transaction, including the rapidity of the means of the communication employed by the offeror.  An oral offer must be accepted immediately unless the circumstances indicate otherwise.

14.4   However, if, by virtue of an offer or as a result of practices which the parties have established between themselves or of usage, the offeree may indicate assent by performing an act, such as one relating to the despatch of goods or payment of the price, without notice to the offeror, the acceptance is effective at the moment the act is performed, provided that the act is performed within the period of time laid down in the preceding paragraph.

14.5   A reply to an offer which purports to be an acceptance but contains additions, limitations or other modifications is a rejection of an offer and constitutes a counter-offer.

14.6   However, a reply to an offer which purports to an acceptance but which contains additional or different terms which do not materially alter the terms of the offer constitutes an acceptance, unless the offeror, without undue delay, objects orally to the discrepancy or despatches notice to that effect.  If he/she does not so object, the terms of the contract are the terms of the offer with the modifications contained in the acceptance.

14.7  Additional or different terms relating to, amongst other things, to the price, payment, quantity and quality of the goods, place and time of delivery, extent of one party’s liability to the other or the settlement of disputes are considered to alter the terms of the offer materially.

14.8   A period of time for acceptance fixed by the offeror in a facsimile, Email or letter begins from the time of despatch or from the date of letter. A period of time for acceptance fixed by the offeror by telephone or other means of instantaneous communication begins or runs from the time that the offer reaches the offeree.

14.9   Official holidays or non-business days occurring during the period for acceptance are included in calculating the period. However, if notice of acceptance can not be delivered at the address of the offeror on the last day of the period because that day falls on an official holiday or non-business day at the place of business of the offeror, the period is extended until the first business day which follows.

14.10 A late acceptance is nevertheless effective as an acceptance if without delay the offeror orally so informs the offeree.

14.11 An acceptance may be withdrawn if the withdrawal reaches the offeror before or at the same time as the acceptance would have become effective.

14.12 For the purposes of these General Conditions, an offer, declaration or acceptance “reaches” the addressee when it is made orally to him/her or delivered by any other means to him/her personally, to their place of business, or if made by facsimile or Email transmission at the time of the despatch of the facsimile or Email as shown by the electronic recording of such time by the apparatus of such transmission as the case may be.

Article 15 – General provisions relating to breach of contract

15.1   A breach of contract committed by a party is fundamental if it results in such detriment to the other party as substantially to deprive him/her of what he/she is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a  result.
15.2   A declaration of avoidance of the contract is effective only if made by notice to the other party.

Article 16 – Anticipatory breach

16.1  A party may suspend his performance of his obligations if, after conclusion of the contract, it becomes apparent that the other party will be perform a substantial part of his obligations as a result of:

(a)    a serious deficiency in his ability to perform or in his/her creditworthiness; or

(b)    his/her conduct in preparing to perform or in performing the contract.

16.2  If the Seller has already despatched the goods before the grounds described in the preceding paragraph become evident, he/she may prevent handing over the goods to the Buyer even although the buyer hoods a document which entitled him/her to obtain them.

16.3  A party suspending performance, whether before or after despatch of goods, must immediately give notice of the suspension to the other party and must continue with performance if the other party, to the reasonable satisfaction of the party giving such notice, provides adequate assurance of his performance.

Article 17 – Effects of avoidance

17.1   Avoidance of the contract releases both parties from their obligations under it, subject to any damages which may be due.  Avoidance does not affect any provision of the contract for the settlement of disputes or any other provisions of the contract governing the rights and obligations of the parties consequent upon the avoidance of the contract.

17.2   A party who has performed the contract either wholly or in part may claim restitution from the other party of whatever the first party has supplied or paid under the contract.  If both parties are bound to make restitution, they must do so concurrently.

17.3   The Buyer loses the right to declare the contract avoided or to require the Seller to deliver substitute goods if it is impossible for the Seller to make restitution of the goods substantially in the condition in which the Buyer is entitled to receive them in accordance with the contract through no fault of his own or by reason of force majeur.

Article 18 – Preservation of the goods

18.1   If the Buyer is in delay in taking delivery of the goods or, where payment is to be made concurrently with delivery of the goods and he/she fails to make such payment, and either the Seller is in possession of the goods, or otherwise able to control their disposition, the Seller is entitled to take such action as he/she considers appropriate to preserve the goods and he/she is entitled to preserve them until either the Buyer is able and does take delivery of the goods or makes full payment in respect of them as the case may be and he/she has been reimbursed his/her expenses in respect of the late taking of delivery of them by the Buyer or late payment for the goods as the case may be.

18.2   If the Buyer has received the goods and intends rejection of them or the taking of any other action against the Seller in respect of them, he/she is under a positive obligation to preserve the goods until resolution of the dispute between the Buyer and the Seller has been reached.

18.3   If goods despatched to the Buyer have been placed at his/her disposal at their destination and he/she exercise the right to reject them, he/she must take possession of them on behalf of the Seller, provided that this can be done without payment of the price and without unreasonable inconvenience or unreasonable expense. A party who is bound to take steps to preserve goods may deposit them in a warehouse of a third person at the expense of the other party provided that the expense incurred is not unreasonable.

18.4   A party who is bound to preserve goods may sell them by any appropriate means if there has been unreasonable delay by the other party in taking possession of the goods or in taking them back or paying for them or the cost of preservation, provided that reasonable notice of the intention to sell has been given to the other party.

18.5   If the preservation of the goods by the party bound to preserve them would involve unreasonable expense, then the party bound to preserve the goods must take reasonable measures to sell them.  To the extent possible he must give notice to the other party of his intention to sell them.

18.6   A party selling the goods has the right to retain out of the proceeds thereof, am amount equal to his reasonable expenses or preserving the goods and selling them.  He must account to the other party for the balance.