1 .1 ln these Terms and Conditions: 'seller' means Orca-Versand.
'Buyer' means the individual, firm, Company or Local Authority with whom the Seller contracts and includes her/his/its successors in title, assignees, receivers or liquidators and live outside from Germany
'Goods' means goods (including any instalment of goods or any parts for them) which the Seller is to supply in accordance with these Conditions.
Contracts means the contract for the purchase and sale of the Goods.
1.2 These Terms and Conditions, together with any other terms and conditions agreed between the Buyer and the Seller in writing, constitute the entire Contract between the Buyer and the Seller and shall prevail over any terms and conditions stipulated by the Buyer and no amendments hereto shall be effective unless expressly agreed between the Seller and the Buyer in writing.
1.3 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1 .4 Paragraph headings of these Conditions shall not effect their interpretation.
2.1 The price of the Goods quoted in the Seller's website or written quotation, shall be valid until the date therein.
2.2 Notwithstanding 2.1 , the Seller reserves the right to increase the price of the Goods to reflect any increase in the cost to the Seller, which is due to: (i) any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alterations of duties, significant increase in the cost of labour, material or other costs of manufacture including supplier price increases).
(ii) any change in delivery dates, quantities or specifications for the Goods requested by the Buyer, or (iii) any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
2.3 (i) For all locations outside from Germany refer to the country pricing matrix. ln such cases, delivery will be by carrier without guaranteed delivery times.
(ii) Carriage will be charged on all products marked *
2.4 The price is inclusive of value added tax, which the Buyer shall be liable to pay.
3.1 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller's catalogue and (where appropriate) the Buyer's order (if accepted by the Seller).
3.2 The Seller reserves the right to modify the specification of the Goods, as required to conform with any applicable safety or other statutory requirements which does not materially affect their quality or performance, as circumstances dictate.
4. BASIS OF THE SALE
4.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written order of the Buyer, which is accepted by the Seller, subject to these Conditions which shall govern the Contract to the exclusion of any other Terms and Conditions.
4.2 Neither the Buyer nor the Seller shall be bound by any variation, waiver of or an addition to these Conditions, except as agreed by both parties in writing.
4.3 Acceptance by the Buyer of part or full delivery of the goods shall constitute acceptance of these Terms and Conditions.
4.4 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, and waives any claim for breach of, any such advice or recommendation with is not so confirmed.
4.5 The Seller shall not be obliged to question the authority of any signature stated to be made by or on behalf of the Buyer that is affixed to any credit application, order, acceptance of delivery or other documents, supplemental to this contract.
4.6 The Seller reserves the right to require any order to be confirmed in writing.
4.7 Where the Goods ordered are to be produced, adapted, designed or altered to a specification provided by the Buyer, the Seller reserves the right to demand, before any order is accepted, full payment.
4.8 The Seller reserves the right to amend any clerical typographical or other error or omission by its servants or agents at any time.
4.9 No order which has been accepted by the Seller may be cancelled by the Buyer, except with the agreement in writing of the Seller and on the terms as the Seller shall require (provided that the Goods have not been altered, designed, produced or adapted to the Buyer's stated requirements) any order may be cancelled subject to the Payment by the Buyer of 10 per cent of the order price. A1I invoice and delivery references must be quoted.
4.10 There shall be no liability on the Seller to accept returned goods. However, the Seller will, at his own option, accept such returns, provided they are received at the Sellers place of business unused and in the same condition, including packaging, in which they were supplied, when the Seller, at its own option, will credit the Buyer in full, or less 15 per cent handling charge according to the circumstances.
5.1 lt is hereby understood and accepted by both parties that no guarantee is given as to delivery dates and that the Seller is not liable for any direct or consequential loss or damage suffered by the Buyer as a result of any delay in delivery or failure to deliver.
5.2 Where goods are to be delivered by an independent carrier, delivery of the Goods by the Seller to the Buyer shall be deemed to be effected at the time of the delivery to or collection by the independent carrier which will be deemed the Buyer's agent.
5.3 Where the goods are to be collected by or on behalf of the Buyer, whether by its servants or agents or otherwise howsoever, collection of the Goods shall constitute delivery to the Buyer.
5.4 lf the goods are to be delivered to the Buyer by means of deferred deliveries or instruments, each such delivery or instalment shall be deemed to be a separate contract and each of these conditions of sale shall apply to each delivery or instalment save and in addition that: (i) payment for each delivery or instalment shall constitute a condition precedent to future deliveries and instruments.
(ii) any failure or defect howsoever caused to or in the Goods or their delivery shall not affect any liability of the Buyer to accept future deliveries or instruments.
5,5 lf the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller's reasonable control or the Buyer's fault and the Seller is accordingly liable to the Buyer, the Seller's liability shall be limited to the excess, if any, of the cost to the Buyer, in the cheapest available market, of similar goods over the price of the Goods.
5.6 lf the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instruction at the time stated for delivery, otherwise than by reason of any cause beyond the Buyer's 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: (i) store the Goods until actual delivery and charge the Buyer for the reasonable cost (including insurance) of storage: or (ii) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expense) account to the Buyer for the excess over or charge the Buyer for any shortfall below the price under the Contract.
6. PAYMENT TERMS
6.1 The Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
6.2 The Buyer shall pay the price of the Goods, together with any transport charges payable within 30 days of the date of the Seller invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to: (i) cancel the contract or suspend any further deliveries to the Buyer', (ii) appropriate any payment made by the Buyer to such of the Goods (or the Goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyers; and (iii) charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 2 per cent per annum above Bank Of Scotland base rate from time to time.
7.1 The Goods are at the risk of the Buyer from the moment they are dispatched or collected from the Seller's premises and from such date until the date of payment as defined in Clause 8.1, the Buyer shall in fiduciary relationship with and be the agent of the Seller in relation to the Goods. In no circumstances shall the carriers of the Goods be or be deemed to be the employees, agents or representatives of the Seller.
7.2 Without prejudice to any other clauses in these conditions of sale the Buyer hereby agrees:- (i) to inform the Seller, in writing, within 14 actual days of dispatch or posting by the Seller to the Buyer of an invoice form or an advice note that the Goods to which they relate have not been delivered.
(ii) to inform the Seller in writing immediately any Goods dispatched by the Seller to the Buyer which appear to have been damaged in transit.
8.1 Notwithstanding the delivery and the passing of risk in the Goods to the Buyer, the title to and property in the Goods shall remain vested in the Seller whilst in the possession of the Buyer, as long as the price or any part thereof remains unpaid.
8.2 Until such time as the property in the Goods passes to the Buyer (and provided that the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods. Upon being requested to deliver up the Goods to the Seller, the right of the Buyer to resell or use the goods in the ordinary course of its business shall cease.
8.3 The Buyer shall not be entered to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so, all monies owing by the Buyer to the Seller shall, without prejudice to any other right or remedy of the Seller forthwith become due and payable.
Where the goods supplied by the Seller to the Buyer have been designed, produced or altered or modified to the specific requirements of the Buyer, the Seller shall have no liability to the Buyer arising out of any defect (other than a manufacturing defect) in the quality or performance characteristics of the Goods and the Buyer in requiring the Seller to undertake such design production alteration or modification undertakes that it shall indemnify the Seller upon demand against any liability howsoever arising in respect of death, injury, damage or loss to property sustained by any third party where such death injury or loss arose directly or indirectly from a failure in the quality or performance of the goods. The Buyer shall indemnify the Seller against all claims, demands and costs for products that are supplied by the Seller to the Buyer and have been designed, produced or altered or modified to the specific requirements of the Buyer in regard to any claims that the Goods or part of them, infringe the Intellectual Property of any third party.
10. GOODS MANUFACTURED BY THIRD PARTY
10.1 Where the goods, which are the subject of the Contract, are not manufactured by the Seller and are delivered direct to the Buyer or collected by the Buyer from the manufacturer or other third party, the Seller shall not be liable for any defect in or loss or damage to such goods whatsoever and whensoever occurring.
1 0.2 Where the goods are supplied by the Seller but manufacturing by a third party, the Seller shall use its best endeavour to pass on to the Buyer such benefits of warranties and guarantees of such goods which the Seller has obtained under its contract with the third party.
11. FORCE MAJEURE
In the event of war, invasion, act of foreign enemy, hostilities (whether war has been declared or not), civil war or commotion, rebellion, revolution, riot, insurrection, terrorism, act of God, explosion or fire, the Seller shall be relieved of liabilities incurred under this Contract wherever and to the extent to which the fulfilment of such obligation is prevented, frustrated, impeded or delayed as a consequence of any such event or by any statute, rules, regulations, orders or requisitions issued by any government, department, council or other duly constituted authority or from strikes, lock-outs lay-offs, breakdowns of plant or any other causes whether or not of a like nature beyond the Seller's control.
12. WARRANTIES AND LIABILITIES
12.1 Subject to the conditions set out below, the Seller warrants that the Goods will correspond with their specification at the time of delivery and will perform substantially in accordance with any written specification for the Goods. Provided that this warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
12.2 The above warranty is given to the Seller subject to the following conditions: (i) the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied
by the Buyer',
(ii) the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller's instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller's approval' ? (iii) the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
12.3 Subject as expressly provided in these Conditions, and except where the Goods are sold under a consumer sale (as defined by the Sale of Goods Act 1979), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
12.4 Where the Goods are sold under a consumer sale (as defined by the Sale of Goods Act 1979) the statutory rights of the Buyer are not affected by these Conditions.
12.5 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure.
If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
12.6 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or at the Seller's sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price) but the Seller shall have no further liability to the Buyer.
12.7 Except in respect of death or personal injury caused by the Seller's negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term or any duty at common law, or under the express terms of the Contract of any consequential loss or damage (whether for loss or profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of, or in connection with, the contract for the supply of the Goods or the use or resale of the Goods by the Buyer, except as expressly provided in these Conditions.
If any condition herein shall be deemed void for any reason whatsoever, but would be valid if part of the wording thereof were deleted, any such condition shall apply with such modification as may be necessary to make it valid and effective.
This Contract shall be governed by and construed in accordance with the laws of England.