The terms and conditions set out below govern all contracts (the “Contract”) for the supply of goods as defined in this agreement to SINOTECH Limited (SINOTECH) a company incorporated in England and Wales with company number 6652360.
In these terms and conditions “Seller” means any party who supplies goods or services to SINOTECH pursuant to a Purchase Order issued to it by SINOTECH either in writing or orally.
In these terms and conditions “Goods” means any goods, replacement goods or services of any kind services supplied to SINOTECH under the Contract.
These terms and conditions shall apply to every contract for the supply of Goods by the Seller to SINOTECH. No variation shall be binding unless agreed in writing by SINOTECH and signed by a director or other authorized person on behalf of SINOTECH. Any terms and conditions proffered at any time by the Seller are hereby excluded and for the avoidance of doubt the Seller acknowledges and agrees that SINOTECH shall not be bound by any conditions the Seller purports to introduce in whatsoever way unless they are consistent with the Contract
The headings are for convenience only and shall not affect the construction or interpretation of these terms and conditions.
1.1 SINOTECH’s order to the Seller is an offer to enter into the Contract upon these terms and conditions.
1.2 Any act to fulfil the order for the Goods by the Seller shall be deemed to be conclusive evidence of the Seller’s acceptance of these terms and conditions.
1.3 The contract cannot be cancelled by the Seller.
1.4 The Seller shall not assign, transfer, charge or otherwise deal with this Contract or any obligation under the Contract without SINOTECH’s prior written consent. Without prejudice to the generality of the foregoing, the Seller shall not sub-contract the design, manufacture, production, or supply of the Goods or any right, liability or obligation without the prior written consent of SINOTECH.
1.5 SINOTECH orders and the Seller agrees to sell the Goods at the price set out in the Purchase Order (“the Price”) which cannot be varied without the prior written consent of SINOTECH.
1.6 The Seller agrees to deliver the Goods to SINOTECH, or to a location specified by SINOTECH, on the date or dates specified in the Purchase Order (“the Delivery Date”) and time shall be of the essence of the Contract.
The Seller warrants, represents, undertakes and guarantees that the Goods supplied under the Contract will:
2.1 be free from defects (manifest or latent), in materials and workmanship;
2.2 conform with the specifications, drawings, descriptions given in quotations, estimates, brochures, sales, marketing and technical literature or material (in whatever format made available by the Supplier) supplied by, or on behalf of, the Seller;
2.3 be free from design defects;
2.4 be suitable, in every aspect, for the purpose intended by SINOTECH of which the Seller acknowledges that it has been notified.
The Seller acknowledges and agrees that the approval by SINOTECH of any design provided by SINOTECH will not relieve the Seller of any of its obligations under this clause.
3.1 SINOTECH shall pay the Price in accordance with the terms set out in the Purchase Order.
3.2 The time for payment due under the terms of the Contract shall not be of the essence.
SINOTECH shall have the right to cancel the order for the Goods (or any part of the Goods). The cancellation shall be made in writing. Without prejudice to the generality of the foregoing, SINOTECH shall pay the Price (or where applicable, that part of the Price) for Goods which have been delivered at the date of cancellation and are in complete compliance with the provisions set out in Clause 2..
Where the Seller fails to deliver the Goods on the Delivery Date or such other time as may be agreed in writing by SINOTECH, SINOTECH shall be entitled:
5.1 to terminate the agreement;
5.2 to buy the same or similar Goods from another seller;
5.3 to recover the element of cost of buying the Goods from another seller which exceed the Price.
These remedies are without prejudice to Clause 6 and all other rights SINOTECH has.
Without prejudice to Clause 5 and the other rights that SINOTECH has, in addition, the Seller shall be liable for all direct, indirect and consequential loss arising from any breach of the provisions of this Contract.
The property in the Goods shall pass to SINOTECH when the Goods are unconditionally appropriated (by either Party, or by or with the consent of either party to the Contract) or on delivery to SINOTECH (or a location specified by SINOTECH), whichever event occurs first.
The Seller warrants that:
8.1 it has full clear and unencumbered title to all the Goods;
8.2 at the date of delivery of any of the Goods it shall hold such title in the Goods as mentioned in Clause 8.1;
8.3 at the date of delivery of any of the Goods it will have full and unrestricted right, power and authority to sell, transfer and deliver all of the Goods to SINOTECH. From that date SINOTECH shall acquire a valid and unencumbered title to the Goods.
The Goods shall be at the Seller’s risk until:
9.1 the Goods are delivered to SINOTECH (or are delivered at the direction of SINOTECH);and
9.2 the Goods are found by SINOTECH to be in accordance with the provisions of Clause 2
Without prejudice to the generality of the foregoing, the Seller accepts the risk of deterioration of the Goods which is necessarily incident to the course of transit.
The Seller shall assign to SINOTECH the benefit of the contract of insurance on the reasonable request of SINOTECH.
SINOTECH shall not have accepted, or be deemed to have accepted, the Goods until the Acceptance Conditions are fulfilled. The “Acceptance Conditions” are:
12.1 the Goods have been delivered to the location specified; and
12.2 SINOTECH has notified the Seller that the Goods are in accordance with the provisions as set out in Clause 2.
Although the Acceptance Conditions have been fulfilled, SINOTECH may still reject the Goods and make a claim for damages where the Goods are not in complete compliance with the provisions as set out in Clause 2 within (what period would be appropriate – we must discuss) of the notice given under Clause 12.2.
The Seller shall indemnify, and keep indemnified, SINOTECH against all claims, costs and expenses which SINOTECH may incur and which arise, directly or indirectly from the Seller’s breach of any of its obligations under the Contract.
Without prejudice to any other right or remedy it might have, either Party may terminate the Contract at any time by notice in writing to the other Party (“the Other Party”) , such notice to take effect as specified in the notice:
14.1 if the Other Party is in breach of the Contract and, in the case of a breach capable of remedy within seven days, (CHECK) the breach is not remedied within seven days (CHECK) of the Other Party receiving notice specifying the breach and requiring it to be remedied, or
14.2 if the Other Party becomes insolvent, or if an order is made or a resolution is passed for the winding-up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or reconstruction), or if an administrator or administrative receiver is appointed in respect of the whole or any part of the Other Party’s assets or business, or if the Other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
All tooling and dies used by the Seller to produce the Goods for SINOTECH shall at all times remain the property of SINOTECH (unless otherwise agreed in writing by SINOTECH) and shall be returned by the Seller to SINOTECH immediately upon receiving a demand in any form whatsoever so to do and in the event of the Seller failing so to do the Seller hereby irrevocably authorises SINOTECH to enter any premises occupied by the Seller for the purpose of collecting such tooling and dies.
No failure or delay by SINOTECH in exercising any right, power or privilege under the Contract shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege. The rights and remedies provided by the Contract are cumulative and not exclusive of any rights and remedies provided by law.
The Contract shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in the Contract. Neither Party shall have, or represent that it has, any authority to make any commitments on the other Party’s behalf.
Either Party to the Contract shall at the request and expense of the other execute and do any deed and other things reasonably necessary to carry out the provisions of the Contract or make it easier to enforce.
If any provision of the Contract is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from the Contract and rendered ineffective as far as without modifying the remaining provisions of the Contract and shall not in any way affect any other circumstances of or the validity or the enforcement of the Contract.
Save as may be required by law the Seller shall make no public announcement relating to the Contract without the prior written consent of SINOTECH.
Any notice required to be given pursuant to the Contract shall be in writing and shall be sufficiently given to the other Party if sent in a letter by first class or air mail prepaid post addressed to that Party at the Party’s last known address or place of business and any notice so given shall be deemed unless the contrary is proved to have been effected at the time at which the letter would be delivered in the ordinary course of post.
For the purposes of the Contracts (Rights of Third Parties) Act 1999 the Contract is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.
Any dispute arising under or in connection with the Contract or the purchase of the Goods shall be referred to arbitration by a single arbitrator by agreement or (in default) nominated on application of either Party by the President for the time being of the Law Society of England and Wales in accordance with the rules of the Law Society.
The validity, construction and performance of the Contract shall be governed by English law and shall be subject to the exclusive jurisdiction of the English courts to which the Parties submit