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Trading Terms & Conditions

1. Definitions and Application
1.1. In these Conditions:
“Seller” means Niterras (UK) Limited, including NTK Technical Ceramics division, and its servants or agents.
“Buyer” means the person, firm or company to whom goods are (or are to be) supplied by the Seller.
“Goods” means the goods (including any instalment of the goods) agreed to be sold by the Seller to the Buyer.
“Contract” means any agreement for the sale and purchase of Goods, of which these Conditions form part.
“Conditions” means the terms and conditions of sale and purchase set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
“Force Majeure” means any cause or event outside the control of the relevant party howsoever caused or arising including (without prejudice to the generality of the foregoing) acts of God, explosion, flood, tempest, earthquake, fire or accident; war or threat of war, sabotage, insurrection, civil disturbance or requisition; acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority; import or export regulations or embargoes; strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party); difficulties in obtaining raw materials, labour, fuel, parts or machinery; power failure or breakdown in machinery;
“Incoterms” means the international rules for the Interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made.
“Quotation” means any quotation of the Seller to the Buyer for the sale and supply of the Goods, any such quotation incorporating these Conditions.
1.2.All Quotations are given and all orders accepted by the Seller are issued and accepted subject to these Conditions, which supersede any other conditions appearing in the Seller’s catalogue or elsewhere and override and exclude any other conditions stipulated or incorporated or referred to by the Buyer, whether in the order or in any negotiations, and any course of dealing established between the Seller and the Buyer. All orders hereafter made by the Buyer shall be deemed to be made subject to these Conditions and the Buyer’s acceptance of any Goods shall constitute acceptance of these Conditions.
1.3.No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’s authorised representative.
1.4.The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.
1.5.Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller; or unless contained in any Quotation.
1.6. If the Buyer comprises more than one person each such person shall be liable for the acts (or omissions) of the other and references to “Buyer” shall refer to each and all such persons.
1.7.Where the Contract provides for delivery upon any trade term included in the rules for the interpretation of trade terms known as Incoterms, then the provisions of Incoterms for that trade term shall apply except insofar as they are inconsistent with these Conditions. In the event of any inconsistency between Incoterms and these Conditions, the latter shall prevail.

2. Quotations
2.1. Any Quotations made by the Seller to the Buyer (including by means of submission of price lists) are exclusive of VAT any other applicable taxes or duties and are strictly net cash against invoice or delivery (whichever is sooner) unless otherwise specifically agreed in writing by a person duly authorised on behalf of the Seller. Any Quotation made by the Seller shall not constitute a valid offer for sale until accepted on the basis of these Conditions, and until such time, the Seller reserves the right to amend or withdraw it at any time and without notice to the Purchaser.

3. Price and Payment
3.1.The price of the Goods shall be Seller’s quoted price or, where no price has been quoted (or if a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. (Where the Goods are supplied for export from the United Kingdom, the Seller’s published export price list shall apply.)
3.2.The Seller reserves the right, by giving notice to the Buyer at any time before delivery (including delivery of any instalment), to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
3.3.In the event that an order is placed for the Goods to be delivered by instalments without any dates for delivery being specified, the Seller shall be entitled prior to delivery of any instalment to increase the price of the undelivered Goods to reflect the current price for the same or similar Goods listed in the Seller’s published price list.
3.4.The Buyer shall in addition to the price of the Goods pay all taxes, duties and other fiscal dues or any kind levied in respect of the sale of the Goods (or in respect of tooling charges) including (but not limited to) value added tax and customs duties.
3.5.Unless otherwise provided in writing in a Quotation or under the Contract, the Seller may invoice the Buyer for the price of the Goods under the Contract upon (or at any time after) tendering delivery of the Goods and the Buyer shall pay the price of the Goods and any such other sums within twenty (20) days from the end of the month in which the invoice is raised. The time for payment under the Contract (including any special payment terms or arrangements under a Quotation) shall be of the essence of the Contract.
3.6.The Buyer shall make all payments under the Contract without any deduction, set off or counterclaim of any kind to which the Buyer might otherwise be entitled.
3.7.If any sum payable under the Contract is not paid on the due date, interest will be payable thereon at the rate of three (3)% over the base rate for the time being of HSBC Bank PLC and shall accrue from day to day before and after any judgement.
3.8.The Seller may at any time in its sole discretion require payment of all or any part of the price of the Goods to be made in cash in advance of delivery or may require guarantees or other security to be provided. Any such payment or security shall be paid or furnished by the Buyer promptly upon such requirement being notified to the Buyer. The Seller shall be under no liability to deliver the Goods unless and until the Buyer has complied with this Condition and has discharged all its other obligations to the Seller under the Contract and on any other account.

4. Description
Whilst every effort has been made to ensure that the Goods are accurately described, all descriptions, specifications, drawings and particulars contained in the Seller’s catalogues, brochures, price lists and other published material are approximate only and do not form part of any contract or give rise to any independent or collateral liability on the part of the Seller.

5. Delivery
5.1. Subject to Condition 11, unless otherwise stated in the Quotation, the Goods shall be delivered Ex Works Hemel Hempstead.
5.2. If the Seller agrees to arrange delivery of the Goods to the Buyer’s address, then unless otherwise stated in the Quotation:
5.2.1. The seller shall apply standard delivery terms of 7 working days for all UK deliveries unless otherwise agreed with the customer.
5.2.2. The Seller shall arrange delivery by such means as it thinks appropriate.
5.2.3. The costs of carriage and any insurance which the Buyer reasonably directs the Seller to incur shall be reimbursed by the Buyer (without any set-off or other withholding whatsoever) and shall be due on the same date as payment for the Goods is due.
5.2.4. The carrier shall be deemed to be the Buyer’s agent and accordingly all claims arising from any delay, damage or loss of the Goods in transit shall be made by the Buyer to the carrier.
5.3. Any dates or periods quoted for delivery of the Goods are approximate only and the Seller shall not be liable to the Buyer for any late delivery or non-delivery of the Goods howsoever caused. Where any specification or drawing has to be approved by the Buyer, any estimated delivery period shall only run from the time when the Buyer has approved the specification or drawing. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer. Where delivery of the Goods is to be made by the Seller in bulk, the Seller reserves the right to deliver up to ten (10)% more or ten (10)% less than the quantity ordered and the total price payable by the Buyer to the Seller shall be adjusted pro-rata accordingly.
5.4. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated. If an order is placed for Goods to be delivered by instalments without any dates for delivery being specified the Buyer must take delivery of all the Goods within one year of the date of the order and unless otherwise agreed in writing the Seller shall be entitled to manufacture all such goods upon acceptance of the Quotation or order.
5.5. If the Buyer fails to take delivery of the Goods (or any instalment) within one month of the delivery date (or within one year in the case of delivery by instalments where no dates for delivery are specified) or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
5.5.1. store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
5.5.2. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) obtain payment from the Buyer for any shortfall below the purchase price (and other amounts due) under the Contract (or account to the Buyer for the excess over the purchase price (and other amounts due) under the Contract.

6. Force Majeure
Without prejudice to Condition 11.3 and the other Conditions herein contained, the Seller shall not be liable to the Buyer (whether for loss, damage or otherwise) or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure is due to any Force Majeure directly or indirectly affecting the activities of the Seller or any person, firm or corporation connected with the sale, manufacture, supply, shipment or delivery of the Goods. In the event that the Seller is delayed by Force Majeure as aforesaid, then a reasonable extension of time for delivery shall be granted after taking into account the full period of such delay.

7. Passing of Risk and Property
7.1. Notwithstanding any other provision hereof (express or implied), property in the Goods shall not pass to the Buyer, and legal and beneficial ownership thereof shall remain vested in the Seller, until the Seller has received in cash or cleared funds:
7.1.1 payment in full of the price of the Goods (together with any other amount payable in respect thereof); and
7.1.2 all other sums due from the Buyer to the Seller on any other account whatsoever.
7.2. Unless and until such time as the property in the Goods passes to the Buyer under Condition 7.1:
7.2.1.the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee only; and
7.2.2.the Buyer shall maintain the Goods separately from its own property and that of any third party, properly stored, protected and insured and identified as the Seller’s property; and
7.2.3.the Seller may at any time inspect and/or repossess the Goods and for such purposes may at any time enter upon any land or building on which the Goods are, or the Seller believes the Goods may be, situated; and
7.2.4.except for a sale or use of the Goods in the ordinary course of its business the Buyer shall not (and shall not purport to) sell, mortgage, encumber or part with possession of the Goods nor allow any lien or other encumbrance to arise over the Goods.
7.3.All payments made by the Buyer will be deemed to have been made first for Goods which the Buyer has re-sold or put into use or which have left the Buyer’s possession.
7.4.The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
7.5.Notwithstanding that property in the Goods may not have passed to the Buyer, risk in the Goods shall pass to the Buyer either as provided by the applicable Incoterms or (if Incoterms do not apply) upon delivery of the Goods to the Buyer or the Buyer’s carrier or other agent.
7.6. The Buyer’s right to possession of the Goods shall terminate immediately if any payment under the Contract (or any other contract between the Buyer and the Seller) is overdue, if the Buyer fails to perform any obligation under the Contract (or any other contract between the Buyer and the Seller), or if an event referred to in Condition 13 occurs.

8. Specifications and Samples
8.1. The Buyer shall, where relevant, be responsible for supplying the Seller with all necessary information to enable the Seller to prepare any applicable specification or drawings from which the Goods will be manufactured and for ensuring the accuracy of the information supplied (including any drawings, design or specification) submitted by the Buyer. The Seller shall be under no liability to the Buyer in respect of any defect in the Goods arising from any drawings, design or specification supplied by the Buyer.
8.2. If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with any drawings, design or specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with any claim by any other person for any infringement or breach of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s drawings, design or specification.
8.3. Where the Seller has supplied drawings, a specification or one or more samples to the Buyer for the Goods and the Buyer has approved the same, the Seller’s obligation under the Contract shall be to supply Goods which correspond with such approved drawings, specification or samples. The Buyer shall be responsible for ensuring that the Goods are suitable for their intended use and the Seller shall be under no liability in respect thereof, and the Buyer acknowledges that it is not relying on the Seller in respect thereof.
8.4. The Buyer shall be deemed to have approved any drawings, specifications or samples if it accepts a Quotation or places an order for Goods following receipt of the same without indicating in writing that it does not approve the same.
8.5. The provisions of Conditions 8.3 or 8.4 (as the case may be) shall apply to repeat orders in the same way as they applied to the first orders for the relevant Goods.
8.6. Where the provisions of Conditions 8.3 or Conditions 8.4 do not apply, it is in any event for the Buyer to satisfy itself that the Goods are satisfactory for their intended purpose, and the Seller shall have no liability in respect thereof and the Buyer acknowledges that it does not rely on the Seller in respect thereof.
8.7.The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or European Union requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.

9. Warranty and Liability
9.1. If the Goods delivered to the Buyer do not, in the opinion of the Buyer, comply with the approved specification or drawings or (as the case may be) the approved samples or are defective due to faulty workmanship or defective materials, the Buyer shall notify the Seller of such defects in writing within thirty (30) days of receipt of the Goods and in the event that the Goods are found by the Seller to be defective, the Goods will be replaced by the Seller or, at the option of the Seller, the purchase price for the defective Goods will be refunded to the Buyer.
9.2. The Buyer shall inspect the Goods on delivery and shall within three (3) days of delivery notify the Seller of any alleged shortage in quantity or other apparent discrepancy in the Goods.
9.3. Save as expressly provided in these Conditions no statutory or other warranty, condition, description or representation of any kind whatsoever on the part of the Seller, including (but not limited to) any such condition as to the merchantability or fitness for any purpose or satisfactory quality of the Goods, is given or to be implied by the Contract nor is any such warranty, condition, description or representation to be taken to have been given or implied from anything said or written in the negotiations between the Seller and Buyer or their respective representatives prior to this Contract.
9.4. The Seller’s liability (if any) whether in contract, tort or otherwise in respect of any loss, injury, or damage suffered by the Buyer whatsoever and howsoever arising out of or in connection with the Goods or their use (including sale) shall be limited to making good, by repair or at the Seller’s option by the supply of a replacement, any such defect or, at the Seller’s option, to payment of an amount not exceeding the purchase price of the Goods pursuant to Condition 9.1.
9.5. The Seller shall not in any circumstances be liable to the Buyer for any incidental, indirect, consequential or special loss or damage.
9.6. Nothing in these Conditions excludes or limits the liability of the Seller: for death or personal injury caused by the Seller’s negligence; for any matter which it would be illegal for the Seller to exclude, limit or attempt to exclude or limit its liability; or for fraud or fraudulent misrepresentation.
9.7. No claims may be made by the Buyer against the Seller with regard to the Goods unless the Buyer notifies the Seller of its claim by registered mail or registered airmail, containing full particulars of the claim within thirty (30) days after delivery of the Goods (in the case of defects in the Goods which should reasonably have been discovered by the Buyer on inspection) or within six (6) months after delivery of the Goods (in the case of other defects).
9.8. Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Conditions.
9.9. The Buyer shall indemnify the Seller against any claim made by any third party and all damages awarded against the Seller and all costs and disbursements (including solicitor and counsel fees) incurred by the Seller arising from the use by any third party of Goods:
(a) which have been modified or adapted by the Buyer or Goods which have been combined with other products by the Buyer not specifically supplied by the Seller for combination with such Goods; and
(b) which have had any process, operation or treatment applied to them unless specifically recommended by the Seller.

10. Tooling
10.1. The provisions of this Condition 10 shall apply where special tooling is required for the Goods.
10.2. The Buyer shall be responsible for the cost of the tooling which shall, unless otherwise stated in the Quotation, be payable by the Buyer immediately upon acceptance of the Contract and in the case of subsequent tooling charges forthwith upon receipt by the Buyer of the relevant invoice.
10.3. In anticipation of the Buyer placing further orders with the Seller for additional quantities of the Goods, the Seller agrees to maintain the tooling in such a condition to enable reasonable quantities of such Goods to be produced.
10.4. If for subsequent orders of Goods the specification thereof varies from the specification of the Goods which are the subject of this Contract then any necessary changes to the tooling will be carried out at the expense of the Buyer.
10.5. In the event that the Buyer provides any tooling to the Seller to assist in the manufacture of the Goods the Seller shall have a lien over such tooling to secure payment of all monies owing from time to time by the Buyer to the Seller whether pursuant to this Contract or any contract subsequently entered into between the Seller and the Buyer.
10.6. Any tooling provided by the Buyer to the Seller for the purposes hereof which shall not be required for twenty-four (24) consecutive months to fulfil a production order from the Buyer will be deemed to have been abandoned by the Buyer and ownership thereof shall pass to the Seller.

11. Export Terms
11.1. Where the Goods are supplied for export from the United Kingdom or are supplied to the Buyer direct from Japan, the provisions of this Condition 11 shall (subject to any special terms agreed in writing between the Buyer and the Seller or contained in the Quotation) apply notwithstanding any other provision of these Conditions.
11.2. The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
11.3. Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered FOB the air or sea port of shipment and the Seller shall be under no obligation to give notice under Section 32(3) of the Sale of Goods Act 1979.

12. Intellectual Property and Confidentiality
12.1.No right or licence is granted under this Contract to the Buyer under any patent, trademark, copyright, registered design or other intellectual property right of the Seller except the right to use or resell the Goods.
12.2.The Buyer shall not, without the written consent of the Seller, disclose to any third party any information, technical data, know-how or other secret or confidential information supplied or disclosed by the Seller to the Buyer. The Buyer shall not copy or reproduce any such information or material and shall return the same to the Seller on demand. The copyright in all brochures, specifications, drawings and technical descriptions supplied by the Seller to the Buyer shall remain the property of the Seller.

13. Insolvency of Buyer etc
13.1.This Condition applies if:-
13.1.1.the Buyer makes any voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or an encumbrancer takes possession, or a receiver is appointed over any of the property or assets of the Buyer, or the Buyer takes or suffers any similar action under the laws of the country where the Buyer is resident or incorporated; or
13.1.2.the Buyer becomes insolvent or unable to pay its debts as they fall due or fails to pay any amount due to the Seller on its due date under this or any other Contract; or
13.1.3.the Buyer ceases, or threatens to cease, to carry on business; or
13.1.4.the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
13.2.If this Condition applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract or the performance in whole or part of the Contract without any liability to the Buyer. If the Goods have been delivered but not paid for, the purchase price (together with any other sums payable) shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
13.3.At any time prior to despatch of the Goods the Buyer shall, if requested by the Seller, provide to the Seller such information as the Seller may reasonably require in order to be satisfied of the capacity of the Buyer to pay for the Goods.

14. Source
14.1.All products purchased and distributed by Niterras (UK) Ltd are supplied from TS16949 or ISO 9001 approved suppliers.
14.2.Source NTK – IC packages and Piezo electrics (made in Japan) are supplied from ISO 9001 approved suppliers. All other products are (or may be) supplied from non-approved ISO 9001 suppliers.

15. Packaging etc
The Buyer agrees that it shall not remove, change or in any way interfere with packaging, trademarks or other marks and labels supplied with or relating to the Goods.

16. Law and Jurisdiction
The Contract shall be governed by and construed in accordance with the laws of England. The parties submit to the non-exclusive jurisdiction of the English courts for the settlement of disputes arising under or in connection with the Contract.

17. Miscellaneous
17.1.In case any one or more of the provisions contained in these Conditions shall be illegal, invalid or unenforceable in any respect under any law or regulation, such provision shall be severable from and shall not affect or impair the validity, legality and enforceability of the remaining provisions hereof.
17.2.Failure or delay by the Seller to enforce any of its rights against the Buyer shall not be construed as a waiver of such rights. If the Seller does waive any of its rights in relation to a breach by the Buyer of its obligations such waiver (which must be in writing) shall not be construed as a waiver of such rights in relation to any other breach.
17.3.Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
17.4.The Buyer shall not be entitled to assign, transfer or dispose of any interest in the Contract without the consent of the Seller. The Seller may assign and transfer its rights and obligations under these Conditions to any person effective by delivery of notice to that effect to the Buyer signed by the Seller and the assignee and transferee.
17.5.A person who is not a party to the Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

18. Trade References
Niterras (UK) Ltd is a member of a credit circle. Information about customers’ trading records may be exchanged verbally or in writing in the course of giving and receiving trade references.

© 2010 Niterras UK

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