Exhibit 10(b)(6)
DATED 18 January 1991
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CHEMICAL FABRICS EUROPE (1)
AEROVAC SYSTEMS (KEIGHLEY) LIMITED (2)
JOAN GIBSON (3)
HOWARD THOMAS GIBSON (4)
SUPPLY AGREEMENT
SUPPLY AGREEMENT
THIS AGREEMENT is made the 18th day of January 1991 BETWEEN CHEMICAL FABRICS
EUROPE whose registered office is at Kilrush, Co Clare, Republic of Ireland
("Chemfab Europe") and AEROVAC SYSTEMS (KEIGHLEY) LIMITED whose registered
officer is at Bradford Road, Sandbeds, Keighley, West Yorkshire BD20 5LN and
HOWARD THOMAS GIBSON both of Aireville Greenhead Lane Keighley West Yorkshire
B020 6EX ("the Gibsons")
W H E R E A S :
A. The Gibsons are shareholders of Aerovac Systems (Keighley) Limited whose
registered office is at Bradford Road, Sandbeds, Keighley, West Yorkshire
BD20 5LN
B. Aerovac as hereinafter defined wishes to purchase quantities of the
Products and Chemfab Europe have agreed to supply such Products on the
following terms:
A G R E E M E N T :
Interpretation
"The Products" means the products of Chemfab Europe listed in Schedule 1 hereto.
"The New Products" means any new products of Chemfab Europe referred to in
Clause 6.
1. The Agreement will commence on the date hereof and will be in force for a
period of three (3) years subject to Clause 10 hereof.
2. The Gibsons agree, to the extent that it is lawful to do so, that they will
procure that Aerovac Systems (Keighley) Limited and any other company owned
and or controlled by one or both of the Gibsons (hereinafter collectively
referred to as "Aerovac") will purchase from Chemfab Europe and Chemfab
Europe hereby agrees to supply to Aerovac 100% of their requirements for
PTFE glass cloth, skived PTFE film products and all other fluoropolymer
containing products (excluding fluoropolymer-containing films manufactured
by a process other than skiving) a that Chemfab Europe (and/or Chemfab
Europe's affiliates) manufactures and is willing and able to supply to
Aerovac during the term of this Agreement and in accordance herewith.
3. Aerovac Systems (Keighley) Limited agrees to purchase from Chemfab Europe
as their sole supplier 100% of their requirements for PTFE glass cloth,
skived PTFE film products and all Chemfab Europe's other fluropolymer
containing products that Chemfab Europe manufactures and is willing and
able to supply to Aerovac Systems (Keighley) Limited during the term of
this Agreement and in accordance herewith.
4.1 Notwithstanding the terms of Clauses 2 and 3 above, Aerovac shall be free
to purchase its requirements for PTFE coated glass lacing tape and self-
adhesive low-elongation PTFE film from any third party without restriction
and the same shall not be construed to be a breach of this Agreement.
4.2 Notwithstanding the terms of Clauses 2 and 3 above, Chemfab Europe's
obligation to supply fluoropolymer containing products to Aerovac shall be
limited to uses by Aerovac in connection with composite molding
operations within the aircraft and spacecraft industries and all other
industries using similar composite moulding processes for applications
related thereto.
5.1 During the term of this Agreement, Chemfab Europe's base price to Aerovac
for each of the Products will be the unit price set out in column 3 of
Schedule 1 subject to increase on 1st September 1991 and thereafter not
more than once in every 12 month period on 1st September. Notwithstanding
anything to the contrary in Chemfab Europe's Standard Terms and Conditions,
Chemfab Europe's prices will only be increased to the extent that Chemfab
Europe's actual costs have increased and selling price increases will be
limited to a maximum of 5% of the previous year's base price. If required,
Chemfab Europe will explain its cost increases, but Chemfab Europe shall
not be required to disclose confidential actual cost data to Aerovac.
5.2 Any price increase shall not take effect in respect of orders already
placed by Aerovac scheduled for delivery within 30 days of the effective
date of the price increase but which remain unfulfilled at the date of the
price review and in any event any price increase shall not take effect
until 30 days have elapsed from the date of written notification to Aerovac
of any such price increase.
5.3 Notwithstanding the provisions of Clauses 5.1 and 5.2, no increase in
price shall take effect if it exceeds 5% of the then current price for the
Product or if the increase would result in the price to Aerovac exceeding
the highest price in respect of the Product charged to any other customer
of Chemfab Europe (provided the Product or New Product is in fact
sold to other customers of Chemfab Europe).
6. In respect of products of a type described in Clause 2 but not currently
listed in Schedule 1 which Aerovac wishes to commence purchasing from
Chemfab Europe ("New Products") Chemfab Europe will sell the New Products
to Aerovac at prices which are the same as Chemfab Europe is then currently
offering to its other customers buying in similar quantities at that time.
This price will become the base price for the New Products and the
provisions relating to price increases set out in Clause 5 above will apply
mutatis mutandis.
7.1 Aerovac shall order from Chemfab Europe and Chemfab Europe shall
accept all such orders for Products and New Products and shall supply the
same in accordance with Chemfab Europe's Standard Terms and
Conditions, as appended in Schedule 2. In the event of any inconsistency
or conflict between the Standard Terms and Conditions and this
Agreement, this Agreement shall prevail.
7.2 The following clauses of the Standard Terms and Conditions of Sale appended
in Schedule 2 shall not apply to orders placed by Aerovac:
Clauses 3.5, 5.4, 6.4, 9.3, 11.2, 11.3 and 14.3.
The following clauses shall only take effect as amended and set out below:
(a) Clause 5.1 provided that "without any deduction" is deleted from lines
9 and 10 thereof
(b) Clause 5.3(c) provided that the words "(a part of a month being
treated as a full month for the purpose of calculating interest)"
be deleted from the first line and that the last line thereof be
deleted;
(c) Clause 5.5 provided that the words "agreed to be be" inserted after
the word "expenditures in line eleven thereof, and that the words
"shall also provide for partial availments against partial deliveries
and" be deleted from the last line thereof;
(d) Clause 7.9 provided that the words "(if any)" be inserted after the
word "right" in the second line;
(e) Clause 9.2 provided that the number "7" be replaced with "15" in the
fourth line;
(f) Clause 13.3 provided that the words "of or produced by the Seller" be
inserted after the word "documents" in the second line thereof.
7.3 Orders placed by Aerovac and accepted by Chemfab Europe during the term of
this Agreement will be fulfilled by Chemfab Europe as soon as practicable
but in the event that Chemfab Europe becomes aware that it will be or is
likely to be unable to satisfy any such order within the period stated in
the order and accepted by Chemfab Europe, Chemfab Europe shall so notify
Aerovac in writing of such inability and Aerovac will be free to purchase
similar products from an alternative supplier and for the purposes of
Clause 2 above any such products shall be deemed to have been purchased
from Chemfab Europe.
7.4 Where Chemfab Europe is unable to satisfy Aerovac's requirements for a
particular order, Chemfab Europe shall have no liability whatsoever to
Aerovac for any increased costs or expenses whatsoever.
7.5 Chemfab Europe's inability to satisfy any particular order shall not
relieve Aerovac from its obligations to place its future orders for that
product and its current and future orders for other Products and the New
Products with Chemfab Europe during the term of this Agreement.
8. Chemfab Europe shall not cease to manufacture or sell or modify in any
substantial way the Products or New Products without giving to Aerovac 90
days' written notice of its intention and details of any such cessation
and/or any proposed modification provided always that any outstanding
orders for the Product or New Product in question shall not be affected by
the same and shall be fulfilled in accordance therewith.
9. Chemfab Europe shall be entitled to assign in whole or in part the benefit
and/or burden of this Agreement to an affiliate of Chemfab Europe but it
shall not be entitled to assign to any third party without the prior
written consent of Aerovac.
10.1 Without prejudice to Clause 1 above each party shall be entitled by giving
notice in writing to the other party to terminate this Agreement forthwith
if at any time:
10.1.1 the other party has breached this Agreement in any material respect
and has further failed to remedy such breach within 30 days of written
notice requiring such remedy; or
10.1.2 the other party becomes insolvent or makes any arrangement with or
assignment for the benefit of creditors or has a receiver or distributor
appointed over or having execution of judgment or distress levied upon the
whole or part of its assets; or
10.1.3 an order is made or resolution passed for winding up or liquidation of
the other party (except where any such event is only for the purposes of
bona fide amalgamation or bona fide reconstruction and the resultant
company emerging is or agreed to be bound by the terms hereof)
10.2 Termination shall operate without prejudice to the rights and obligations
of either party in relation to the other which have accrued prior to or on
termination or expiry of the Agreement.
10.3 Chemfab Europe shall fulfill any orders receive during any period of notice
of termination whether given by Chemfab Europe or Aerovac save in the event
that Chemfab Europe has given such notice and stating that the reason
for termination is that Aerovac has failed to make any payments due
hereunder.
11. Notices pursuant to or in respect of this Agreement shall be in writing in
English and may be:
(a) delivered by hand or sent by prepaid Recorded Delivery post to the
registered office or main place of business of the receiving party
in which case they shall be effective from the actual date and time
of delivery; or
(b) sent by telex or facsimile transmission to the actual telex or
facsimile facility of the receiving party in which case they shall
be deemed to be effective on the commencement of business of the
next usual business day after the time of transmission and for the
above purposes the following shall until further notice be the
addresses to which such notices shall be sent:
For Chemfab Europe: Kilrush, County Clare,
Republic of Ireland
Facsimile: 353 655 1423
Telex: 70673 -CHEME1
(Telephone: 353 655-1421)
For Aerovac: Bradford Road, Sandbeds,
Keighley, West Yorkshire,
BD20 5LN
Facsimile: 0535 609754
Telex: 517430 VACBAG G
(Telephone: 0535 607457)
12. Warranty
12.1 Chemfab Europe hereby warrants that all Products and New Products
supplied to Aerovac hereunder shall be of merchantable quality, and in
the event that any of the same are found to be defective Chemfab Europe
shall at the option of Aerovac replace such defective items or refund the
purchase price in respect thereof.
12.2 The repair, replacement or refund of purchase price in respect of any
Products or New Products which are found not to be of merchantable
quality shall be Aerovac's sole and exclusive remedy in respect of such
defective Products or New Products and in no event shall Chemfab Europe
or its affiliates be liable to Aerovac or to any other person for damage,
injury or loss of any kind whatsoever (including loss of profits and
consequential damages) to any person, property or animals caused
directly or indirectly by the Products or New Products supplied.
13. Neither party shall be liable for any delay or failure to meet its
obligations under this Agreement or any particular order pursuant thereto
as a direct or indirect result of any cause whatsoever beyond its control
including without limitation, strike, war or act if war (whether an
actual declaration thereof is made or not), insurrection, riot or civil
commotion, act of God, act of any governmental authority.
14. Each party agrees to maintain as secret and confidential all information
that it may acquire from the other party or the other party's affiliates
during this Agreement and shall disclose the same only to those of its
employees to whom and to the extent that such disclosure is reasonably
necessary for the purpose of this Agreement provided always that the
foregoing obligations shall not apply to information which:
(a) prior to receipt thereof from one party as in the possession ofthe
other and at its free disposal; or
(b) is subsequently disclosed to the recipient party without any
obligations of confidence by a third party who has not derived it
directly or indirectly from the other; or
(c) is or becomes generally available to the public through no act or
default of the recipient party.
15.1 This Agreement constitutes the entire understanding between the parties
with respect to the subject matter hereof and supersedes all prior
understandings and agreements between the parties with respect to the
subject matter.
15.2 No variation or amendment to this Agreement shall bind either party
unless made in writing making reference to this Agreement and agreed in
writing by duly authorized offices of both parties.
16. This Agreement and any contract entered into pursuant hereto shall be
governed by and construed in accordance with English law and the parties
hereby irrevocably agree to submit to the non-exclusive jurisdiction of
the English courts.
IN WITNESS whereof each of the parties hereto has caused this Agreement to be
signed by himself or herself or on its behalf by its duly authorised
representative as appropriate the day and year first above written
SIGNED on behalf of CHEMICAL ) /s/ Gabrial O'Gara
FABRICS EUROPE by ) ------------------------
SIGNED on behalf of ) /s/ Howard Thomas Gibson
AEROVAC SYSTEMS (KEIGHLEY) ) ------------------------
LTD by ) /s/ Joan Gibson
------------------------
SIGNED by HOWARD THOMAS ) /s/ Howard Thomas Gibson
GIBSON ) ------------------------
SIGNED by JOAN GIBSON ) /s/ Joan Gibson
-------------------------
SCHEDULE 1
THE PRODUCTS
Description Unit Price
Style Width Price per Linear
Metre STG Pounds
- ----------------------------------------------------------------------
Chemglas 100-3 1000mm 4.32
Chemglas 100-5 1000mm 6.52
Chemglas 100-5 1270mm 9.41
Chemglas 100-6 1000mm 7.82
Chemglas 100-10 1000mm 10.60
Chemglas 100-10 1350mm 14.25
Chemglas 100-10 COND 1525mm 17.50
Chemglas 700-3 1000mm 3.68
Chemglas 700-5 1000mm 5.29
Chemglas 700-6 1000mm 6.47
Chemglas 400-3 M 1000mm 1.63
Chemglas 400-3 H 1525mm 3.74
Chemglas 400-3 M-108 1000mm 3.00
Chemstik 700-3S 1000mm 8.49
Chemstik 700-5S 1000mm 10.06
Chemstik 700-6S 1000mm 11.31
Chemstik 700-10S 1000mm 14.34
Chemstik 700-5S COND 1000mm 11.44
SPSA-3S 600mm 7.71
SPSA 5S 1000mm 11.26
SPSA 10S 1000mm 19.58
S-6006W 1000mm 5.20
SCHEDULE 2
CHEMFAB STANDARD TERMS & CONDITIONS
[ATTACHED]
CHEMICAL FABRICS EUROPE
1. INTERPRETATION
1.1 In these Conditions:
"Acknowledgment" means the Acknowledgment on the face hereof and all
documents incorporated in it;
"Buyer" means the person, firm of Company whose Order for the Goods is
accepted by Seller;
"Conditions" means the standard terms and conditions of sale as hereinafter
appearing and (unless the context otherwise requires) includes any special
terms and conditions agreed in writing between Buyer and Seller;
"Contract" means the contract between Seller and Buyer for the purchase and
sale of the Goods;
"Goods" means the products or materials specified on the face hereof
(including any installment of the goods or any parts for them) referred to
in an Order of Buyer accepted by Seller in accordance with these
Conditions;
"Order" means an order for Goods submitted by Buyer to Seller or the
acceptance by Buyer of an Invoice for the sale of Goods submitted by Seller
to Buyer;
"Seller" means Chemical Fabrics Europe, Kilrush, County Clare, Ireland;
"in writing" includes telex, cable, facsimile transmission and comparable
means of communication;
"the 1980 Act" means the Sale of Goods and Supply of Services Act 1980.
"Invoice" means the Invoice on the face hereof and all documents
incorporated in it.
2. GENERAL
2.1 These conditions shall govern the supply of Goods by Seller to Buyer and
shall prevail over any inconsistent terms and conditions contained in or
referred to in Buyer's order or in correspondence or elsewhere and all or
any conditions or stipulations contrary to these are hereby excluded. No
employee has authority to vary or add to or depart from these terms or make
any representation about the Goods or the Contract made herein. No
variation, waiver of, or addition to these conditions shall bind Seller
unless agreed to by an authorised officer of Seller in writing.
2.2 Seller's employees or agents are not authorised to make any representations
concerning the Goods unless confirmed by Seller in writing. In entering
into the Contract, Buyer acknowledges that it does not rely on, and waives
any claim for breach of, any such representations which are not so
confirmed.
2.3 Any advice or recommendation given by Seller or its employees or agents to
Buyer or its employees or agents as to the storage, application, or use of
the Goods which is not confirmed in writing by Seller is followed or acted
upon entirely at Buyer's own risk, and accordingly Seller shall not be
liable for any such advice or recommendation which is not so confirmed.
2.4 Any typographical, clerical, or other error or omission in any sales
literature, quotation, price list, acceptance of offer, invoice or other
document or information issued by Seller shall be subject to correction
without liability on the part of Seller.
3. ORDERS
3.1 An offer will be constituted by an Order on the basis of an Invoice, and
Seller's acceptance of such Order will create a contract on the terms set
out in such Invoice, and on the terms set out in these Conditions and on
the terms set out in any communication from Seller prior to or accompanying
the acceptance of the Order. Each Order from Buyer constitutes the basis
of a separate contract.
3.2 Unless otherwise agreed by Seller in writing the quantity, quality and
description of and any specification for the goods shall be those set out
in Seller's Invoice and/or Acknowledgment or in the absence of an Invoice
and/or Acknowledgment, in Seller's acceptance or confirmation of Order and
Buyer shall be responsible to Seller for ensuring the accuracy of the terms
of any Order and for giving Seller any necessary information relating to
the Goods within a sufficient time to enable Seller to perform the Contract
in accordance with its terms.
3.3 (a) If the Goods are to be manufactured, or any process is to be applied
to the Goods by Seller in accordance with a specification submitted by
Buyer, it shall be the responsibility of Buyer to ensure that the
specification accurately sets out all the requirements of the Buyer, and
Buyer shall indemnify Seller against all loss, damages, costs and expenses
awarded against or incurred by Seller in connection with or paid or agreed
to be paid by Seller in settlement of any claim for infringement of any
patent, copyright, design, trademark or other industrial or intellectual
property rights of any other person which results from Seller's use of
Buyer's specifications.
(b) In the case of any dispute and/or claim arising in connection with any
such alleged infringements Seller reserves every right to cancel and make
null and void this Contract at its discretion and to hold Buyer responsible
for any loss caused thereby to Seller. Nothing herein contained shall be
construed as transferring any patent, utility model, trade mark, design or
copyright in the Goods; all such rights are expressly reserved to the true
and lawful owners thereof.
3.4 Seller reserves the right to make any changes in the specification of the
Goods which are required to conform with any applicable safety or other
statutory requirements or, where the Goods are to be supplied to Seller's
specification, which do not materially affect their quality or performance.
3.5 No order which has been accepted by Seller may be cancelled by Buyer except
with the agreement in writing of Seller and on terms that Buyer shall
indemnify Seller in full against all loss (including loss of profit), costs
(including the cost of all labour and materials used), damages, charges and
expenses incurred by Seller as a result of cancellation.
4. PRICES
4.1 The price of the Goods shall be the sum specified by Seller on the Invoice
and/or Acknowledgment or where no sum has been specified (or where the
price specified is no longer valid) the price listed in Seller's published
price list current at the date of acceptance of the Order. All prices
specified in the Seller's published price list are subject to variation
without notice. Subject to clause 4.2 hereof all prices specified are
valid for 30 days only or until acceptance by Buyer (whichever is the
earlier).
4.2 Seller reserves the right to increase the prices specified on the
Invoice and/or Acknowledgment should there be any increase in the cost
of labour, materials, duties, taxes, rates of exchange, freight, or
other charges, expenses or costs payable by Seller. All prices
specified on the Invoice and/or Acknowledgment are exclusive of Value
Added Tax or any other tax thereafter imposed or any other third party
liabilities and any Value Added Tax or other tax payable in respect of
Goods supplied will be borne by Buyer.
4.3 Any new or increased taxes, customs duties, import surcharges, or other
governmental charges which become effective after the date of the Contract
shall be for the account of Buyer even if the Goods are sold on terms such
as delivered or duty paid terms.
4.4 Customs duties, consular fees and other taxes, dues or fees charged in
accordance with any laws or regulations of the country of destination, as
well as any costs connected therewith, shall be borne by Buyer. In the
case of delivery including customs or other duties, the price quoted is
based on the rates in force at the time of quoting. The actual expenses
will be charged to Buyer.
4.5 The prices denotes the currency of payment to Seller, irrespective of what
price Buyer may pay for foreign exchange, which shall be at the Buyer's
risk.
4.6 Except as otherwise stated under the terms of any quotation or in any price
list of Seller, and unless otherwise agreed in writing between Buyer and
Seller, all prices are given by Seller on an ex works basis, and where
Seller agrees to deliver the Goods otherwise than at Seller's premises,
Buyer shall be liable to pay Seller's charges for transport, packaging and
insurance.
5. TERMS OF PAYMENT
5.1 Seller shall be entitled to invoice 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 Buyer or Buyer wrongfully fails to take delivery of the Goods,
in which event Seller shall be entitled to invoice Buyer for the price at
any time after Seller has notified Buyer that the Goods are ready for
collection or as the case may be the Seller has tendered delivery of the
Goods. All payments shall be made within thirty days of the end of the
invoice month without any deduction free of charge to the address for
payment prescribed by Seller unless otherwise agreed.
5.2 If a transfer of payments from the country from which payment has to be
made should be impossible on the due date, Buyer shall nevertheless pay the
equivalent of the amount owed into a bank in the said country within the
stipulated time. In the case of deterioration of the rate of exchange for
amounts paid in a currency not agreed upon. Buyer shall make good such
deficiencies by additional payment.
5.3 If Buyer fails to make any payment on the due date then, without prejudice
to any other right or remedy available to Seller, Seller shall be entitled
to:
(a) cancel the Contract or suspend any further deliveries to Buyer,
(b) appropriate any payment made by Buyer to such of the Goods (or the
goods supplied under any other contract between Buyer and Seller) as Seller
may think fit (notwithstanding any purported appropriation by Buyer), and
(c) charge Buyer interest (both before and after any judgment) on the
amount unpaid, at a rate equal to that payable by Seller on overdraft
borrowings until payment in full is made (a part of a month being treated
as a full month for the purpose of calculating interest). A statement from
Seller as to the rate of interest applicable under this clause 5.3 shall in
the absence of manifest ever be conclusive. The Buyer shall be responsible
for all costs legal or otherwise incurred by Seller in seeking payment of
the sum due.
5.4 No payments may be withheld nor any counter-claim of Buyer be set-off
against the payment without the consent of Seller.
5.5 If payment under the contract is to be made by letter of credit then unless
otherwise mentioned on the face thereof, Buyer shall establish an
irrevocable and confirmed letter of credit with a prime bank satisfactory
to Seller which letter of credit shall be in a form and upon terms
satisfactory to Seller, and shall be in favour of Seller, and shall provide
that all payments shall be made only to the order of Seller. Any such
letter of credit shall refer to the Contract by its sums, if any, as may be
advanced by Seller for consular invoices, inspection fees, and other
expenditures made by Seller for the account of Buyer. The letter of credit
shall also provide for partial availments against partial deliveries and
shall be maintained for a period of not less than 30 days after the latest
shipment set forth on the face hereof.
6. DELIVERY
6.1 Delivery of the Goods shall be made by Buyer collecting the Goods at
Seller's premises at any time after Seller has notified Buyer that the
Goods are ready for collection or, if some other place for delivery is
agreed by Seller, by Seller delivering the Goods to that place. If the
Goods are to be delivered away from Seller's premises to the method or
route of carriage from Seller's premises Seller shall have the option at
the risk and expense of Buyer to nominate the method and route and Buyer
shall have full responsibility for any loss or damage caused to the Goods
once they have left Seller's premises.
6.2 All delivery dates mentioned by Seller are approximate only and not of
contractual effect. Time of delivery is not of the essence of the Contract
nor shall Seller be under any liability in respect of any delay in delivery
for whatever reason. The Goods may be delivered by Seller in advance of
the quoted delivery date upon giving reasonable notice to Buyer.
6.3 Where delivery of the Goods is to be made by Seller in bulk, Seller
reserves the right to deliver up to 10 per cent more or 10 per cent less
than the quantity ordered without any adjustment in the price, and the
quantity so delivered shall be deemed to be the quantity ordered and the
buyer shall be obliged to accept and pay the contract rate for the quantity
of goods delivered.
6.4 Seller may complete an Order by installments and invoice the installments
separately. Payment of any installment due is a condition precedent to
starting further deliveries. Seller shall have the right to terminate the
Contract when any installment or payment is in arrears. The losses of
Seller resulting from withholding deliveries of Goods due to non-payment by
Buyer shall be refunded by Buyer but Buyer shall not have any entitlement
to compensate from Seller in respect of such termination or withholding.
6.5 If Buyer fails to take delivery of the Goods or fails to give Seller
adequate delivery instructions at the time stated for delivery (otherwise
than by reason of any cause beyond Buyer's reasonable control or by reason
of Seller's fault) then, without prejudice to any other right or remedy
available to Seller, Seller may:
(a) store the Goods until actual delivery and charge the Buyer for the
reasonable costs (including insurance) of storage; or
(b) sell the Goods at the best price readily obtainable and (after
deducting all reasonable storage and selling expenses) retain for its own
account the excess over the price under the Contract or charge the Buyer
for any shortfall below the price under the Contract.
7. RESERVATION OF OWNERSHIP
7.1 The title in the Goods supplied by Seller to Buyer shall remain the
property of Seller until all debts owing to Seller or to be created in the
future and arising from the business connection with Buyer have been paid
in full.
7.2 Until property in the Goods passes to Buyer, Buyer shall keep the Goods as
bailee and in a fiduciary capacity for Seller and shall ensure that the
same remain at all times separately identifiable as the property of Seller
(such storage to be in accordance with Seller's recommendations) and shall
return them to Seller on request.
7.3 Buyer shall, while in possession of any Goods the property wherein rests in
Seller, keep the Goods fully insured and any monies received by Buyer on
foot of any insurance policy in respect of any damage, deterioration, loss
or destruction of the Goods shall be held on trust for Seller.
7.4 Should Buyer, while in possession of any Goods the property wherein remains
in Seller, sell or dispose of the Goods to any other person, such part of
the proceeds of such sale or disposal as is attributable to the price due
by Buyer to Seller in respect of such goods, shall be held by Buyer on
trust for Seller said proceeds to be paid into a separate account and held
on trust for Seller as the property of Seller.
7.5 Seller may at any time, give notice to Buyer requiring Buyer to re-deliver
at Buyer's expense any Goods supplied by Seller in which Seller has
property where Buyer is in default of payment for longer than thirty days
from the date of the invoice or if any bill of exchange, cheque or other
negotiable instrument drawn or accepted or endorsed by Buyer in favour of
the Seller is dishonoured on presentation for payment.
7.6 Any servant, agent or contractor authorized by Seller shall be entitled to
enter upon any premises of Buyer for the purpose of removing any Goods
which are the property of Seller and which are in the possession of Buyer.
7.7 Where a cheque, bill of exchange or other negotiable instrument is offered
as payment for any Goods, Seller shall not be deemed to have received
payment until the cheque, bill of exchange or other negotiable instrument
has been cleared and honoured.
7.8 In the event of Buyer selling or disposing to any person, goods, property
wherein has not passed from Seller to Buyer, Buyer shall hold any rights or
remedies in respect of such sale or disposal in trust for Seller and shall,
if directed by Seller, exercise any such rights or remedies on behalf of
Seller and for the benefit of Seller.
7.9 Nothing in these conditions shall prejudice Seller's right to payment of
the price of the Goods damages, loss of profit and interest.
8. TRANSFER OF RISK
8.1 Notwithstanding the provisions of Condition 7 risk of damage to or loss of
the Goods shall pass to Buyer:
(a) In the case of Goods to be delivered at Seller's premises, at the time
when Seller notifies Buyer that the Goods are available for collection; or
(b) in the case of Goods to be delivered otherwise than at Seller's
premises, at the time of delivery or, if Buyer wrongfully fails to take
delivery of the Goods, the time when Seller has tendered delivery of the
Goods.
9. EXCLUSION OF WARRANTY
9.1 (a) Subject to paragraph (b) hereof Seller makes no warranty or
representation as to the quality of any Goods or their fitness for a
particular purpose or their conformity with any description or sample
unless such warranty or representation has been expressly stated in writing
by Seller and Seller shall not be responsible to Buyer or to any other
person for damage injury or loss of any kind whatsoever (including loss of
profits and consequential damages) to any property persons or animals
caused directly or indirectly by the Goods supplied, advice given or any
act or omission by Seller; and Buyer shall indemnify Seller in respect of
all claims made by any person against Buyer or Seller in respect of such
damage injury or loss.
(b) The exemptions from the provisions of Section 13, 14 and 15 of the
Sale of Goods Act 1893 ("the 1893 Act") (as inserted by Section 10 of the
Sale of Goods and Supply of Services Act 1980 ("the 1980 Act")) contained
in paragraph (a) hereof shall, in all cases other than a contract for the
international sale of goods (as defined in the 1980 Act) be subject to the
restrictions on such exemptions contained in Section 55(4) of the 1893 Act
(as inserted by Section 22 of the 1980 Act).
9.2 Any claim by 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 Buyer) be notified to 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 Buyer does not
notify Seller accordingly, Buyer shall not be entitled to reject the Goods
and Seller shall have no liability for such defect or failure, and Buyer
shall be bound to pay the price as if the Goods had been delivered in
accordance with the Contract.
9.3 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, Seller shall be entitled to replace the Goods (or the part in
question) free of charge or, at Seller's sole discretion, refund to Buyer
the price of the Goods (or a proportionate part of the price), but Seller
shall have no further liability to the Buyer.
10. FORCE MAJEURE
10.1 Seller shall not be liable to Buyer or be deemed to be in breach of the
Contract by reason of any delay in performing, or any failure to perform,
any of Seller's obligations in relation to the Goods, if the delay or
failure was due to any cause beyond Seller's reasonable control. [Without
prejudice to the generality of the foregoing the following shall be
regarded as causes beyond the Seller's reasonable control:
(a) act of God, explosion, flood, tempest, fire or accident of any sort;
(b) war or threat of war, sabotage, insurrection, civil disturbance or
requisition;
(c) acts, restrictions, regulations, by-laws, prohibitions or measures of
any kind on the part of any governmental, parliamentary, local or other
authority (including but without limited to naval or military authorities);
(d) import or export regulations, embargoes or blockades;
(e) strikes lockouts or other industrial actions or trade disputes whether
actual or threatened and whether involving employees of Seller or of a
third party;
(f) difficulties in obtaining raw materials, labour, fuel, parts of
machinery;
(g) power failure or breakdown in machinery.
10.2 Any additional or increased freight or insurance premium or other charges
relating to the sale, loading, delivery, storage and transportation of the
Goods which shall be incurred as a result of or in consequence of any cause
or causes specified in paragraph 10.1 hereof or otherwise howsoever arising
shall be for the account of Buyer.
11. TERMINATION
11.1 If Buyer becomes bankrupt, or enters into an arrangement with his creditors
or if execution is levied against him or (if a Company) a petition be
presented or an order is made or resolution is passed for a winding up of
Buyer or if a receiver is appointed over any property of Buyer or if Buyer
becomes insolvent or if Buyer is in breach of any contract with Seller,
Seller may stop any Goods in transit and suspend further deliveries and may
determine the Contract with Buyer without prejudice to any existing claim
of Seller and nothing in this condition shall prejudice any other right
vested in Seller.
11.2 Seller may terminate the Contract at any time by giving to Buyer fourteen
days notice of such termination and Seller shall not be liable to make any
payment whatsoever on foot of such termination.
11.3 In the event that as a result of some material breach of the Contract by
Seller, the Contract is cancelled by Buyer, Seller shall, without prejudice
to any other rights which it may have against Buyer, be entitled to recover
from Buyer payment for all Goods delivered hereunder as well as payment in
respect of Goods manufactured or partly manufactured for Buyer under this
or any other Contract but not delivered to Buyer at the date of
cancellation. Any such cancellation by Buyer shall be effected by giving
21 days written notice thereof to Seller specifying the alleged breach of
the Contract.
12. EXPORT TERMS
12.1 In these Conditions '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. Unless the context
otherwise requires, any term or expression which is defined in or given a
particular meaning by the provision of INCOTERMS shall have the same
meaning in these Conditions, but if there is any conflict between the
provisions of INCOTERMS and these Conditions, the latter shall prevail.
12.2 Where the Goods are supplied for export from Ireland the provisions of
Condition 9 and this 12 shall (subject to any special terms agreed in
writing between Buyer and Seller) apply notwithstanding any other provision
of these Conditions.
12.3 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 thereon.
12.4 Unless otherwise agreed in writing between Buyer and Seller, the Goods
shall be delivered from the air or sea port of shipment.
13. SAMPLES
13.1 All Goods are supplied subject to reasonable availability to Seller of
suitable materials and Seller reserves the right without notice to
substitute suitable materials other than those mentioned in the Contract.
13.2 All drawings, specifications, brochures, catalogues, labels, price lists
and advertising matter are intended merely to present a general idea of the
Goods or services described therein and are not intended thereby to
constitute any sale or sale by description nor shall they form part of the
Contract.
13.3 All drawings, designs, specifications and other documents are and shall
remain the property of Seller who shall retain all copyrights therein and
such drawings, designs, specifications or other documents must not be
copied, reproduced or divulged either directly or indirectly to any other
person without the prior written consent of Seller and shall be returned to
Seller if so requested.
13.4 Samples are sent and inspected solely to enable Buyer to judge the visual
appearance of the Goods and are not intended to constitute any sale a sale
by sample. All samples remain the property of Seller and shall be returned
by Buyer to Seller on request.
13.5 All information concerning quantities and designs, drawings, explanations,
descriptions and illustrations submitted by Seller are to be considered as
approximate and are not binding.
14. GENERAL
14.1 These Conditions shall be subject to and construed in accordance with the
laws of Ireland.
14.2 The Buyer hereby irrevocably agrees to submit to the non exclusive
jurisdiction of the Courts of Ireland.
14.3 Any dispute arising under or in connection with these Conditions or the
sale of the Goods shall be referred to arbitration by a single arbitrator
appointed by agreement or (in default) nominated on the application of
either party by the President for the time being of the Incorporated Law
Society of Ireland. Any such arbitration shall be governed by the
provisions of the Arbitration Acts 1954-1980.
14.4 Even in the event of individual clauses of the Contract being invalid, its
remaining parts shall continue to be binding. Should any clause be invalid
wholly or in part, the contracting parties will endeavor without delay to
attain the economic result aimed at the invalid clause in another legally
admissible manner.
14.5 Any notice or written communication provided for in the Conditions shall be
sufficiently given if:
(a) personally delivered or sent by post to the address set forth herein
of the party to which the notice or communication is being given, or to
such other address as such party shall communicate to the party giving the
notice or communication; or
(b) transmitted by telex, facsimile or other means of visible electronic
production to the correct transmission number of the party to whom it is
being transmitted.
14.6 Any notice, or communication, given or sent by post hereunder, shall be
sent by registered post.
14.7 Every notice or communication given in accordance with the provisions of
this clause shall be deemed to have been received as follows:
Means of Despatch Deemed Received
----------------- ---------------
Personal Delivery On Delivery
Post Two (2) business days after
posting
Telex, facsimile or One (1) business day
other means of visible in the country of
electronic reproduction receipt after trans-
mission to the correct number.
14.8 Without prejudice to the validity of any notice or communication
transmitted hereunder by telex, facsimile or other means of visible
electronic reproduction, the party who has transmitted it shall:
(a) forthwith confirm the fact of transmission by telephone to the party
to whom such notice or communication has been transmitted, and
(b) use its best endeavors to despatch, within seven (7) business days
after the notice or communication is transmitted, a copy of the notice or
communication by post to the party to which it has been transmitted.