Conditions of Sale
1. DEFINITIONS
In these Conditions the following expressions shall have the following meanings:
"the Company" means ESHEL INTERNATIONAL of SIALKOT , PAKISTAN and also where the context so permits its assigns and any sub contractor for the said Company.
"Goods" means the articles or things or any of them described in the Contract.
"the Buyer" means the person firm or Company with whom the Contract is made by the Company whether directly or indirectly through an agent or factor who is acting for or instructed by or whose actions are ratified by such person firm or Company.
"Company's Premises" means the Company's works at SIALKOT , PAKISTAN "the Contract" means the contract between the Buyer and the Company for the sale and purchase of the Goods, consisting of the Company quotation for the sale or supply of the Goods and any documents referred to therein, these Conditions of Sale, the Buyer's order for the Goods (but excluding the buyer's terms of business if included in the order) and the Company's acknowledgement thereof.
2. GENERAL
These Conditions shall be deemed to be incorporated in the Contract and in all contracts of the Company to sell Goods and in the case of any inconsistency with any order letter or form of contract sent by the Buyer and the Company or any other communication between the Buyer and the Company whatever may be their respective dates the provisions of these Conditions shall prevail unless expressly varied in writing and signed by a director on behalf of the Company. Any concession made or latitude allowed by the Company to the Buyer shall not affect the strict rights of the Company under the Contract. If in any particular case any of these Conditions shall be held to be invalid or shall not apply to the Contract the other conditions shall continue in full force and effect.
3. ORDERS
NOTWITHSTANDING that the Company may have given a detailed quotation no order shall be binding on the Company unless and until it has been accepted in writing by the Company.
If the Buyer is a new customer the Contract is conditional at the Company's option upon the Buyer providing the Company with two satisfactory trade references and an account of the Buyer with the Company being approved and opened. The Company reserves the right to refuse to supply goods in accordance with an order made by the Buyer notwithstanding that such order has previously been accepted by the Company until such conditions have been fulfilled to the satisfaction of the Company.
4. PRICES & ADDITIONAL COSTS
Subject to condition 4(2), the price payable for Goods shall unless otherwise agreed by the Company in writing be the list price of the Company current at the date of dispatch which shall supersede all prices for similar goods in previous price lists and in the case of an order for delivery by installments the price payable for each installment shall be the list price of the Company current at the date of dispatch of such installment.
Unless otherwise expressly stated, by the Company, to be firm for a period, the price payable for Goods is subject to variation by the Company without notice and the price payable by the Buyer will be those ruling at the date of dispatch.
All prices are exclusive of Value Added Tax and this will be charged by the Company and payable by the Buyer at the appropriate rate.
THE Buyer shall indemnify the Company in respect of any loss, or cost, or expense, incurred by the Company as a result, directly, or indirectly, of the Buyer's instructions or lack of instructions or failure or delay in taking delivery or any cancellation by the Buyer of Goods ordered by the Buyer or through any act or default on the part of the Buyer its servants agents or employees
5. TERMS OF PAYMENTS
UNLESS otherwise agreed by the Company in writing payments shall be due in cash not later than the end of the month next following the month of the date of the invoice save that
payment shall become due in any event forthwith upon the occurrence of any of the events referred to in Condition 14 hereof and payment of an order accepted by the Company prior to an account for the Buyer with the Company having been approved and opened is due forthwith upon delivery of the Goods, and
If upon the terms applicable to the Contract the price shall be payable by installments or if the Buyer has agreed to take specified quantities of Goods at specified times a default by the Buyer in the payment of any due installment or the failure to give delivery instructions in respect of any quantity of Goods outstanding shall cause the whole of the balance of the price to become due forthwith
The price of the Goods shall be due in full to the Company in accordance with the terms of the Contract and the Buyer shall not be entitled to exercise any set off lien or any other similar right or claim
The time of payment shall be of the essence of the Contract
6. DELIVERY & RETURNS
THE period for delivery shall be the period within which the Goods are intended to be dispatched from the Company's Premises and shall be calculated from the time of the receipt by the Company of the Buyer's order or from the receipt of all necessary information to enable the Company to manufacture or procure the manufacture of the Goods whichever shall be the later and the Buyer shall take delivery of the Goods within that period
All times or dates given for delivery of the Goods are given in good faith but without any responsibility on the part of the Company. Time of delivery shall not be of the essence of the Contract nor shall the Company be under any liability for any delay beyond the Company's control
No liability for shortage or non delivery loss of or damage to the Goods occurring prior to delivery or for any claim that the Goods, defective or otherwise, are not in accordance with the Contract (being a defect or non compliance obvious upon a reasonable inspection of the Goods) will attach to the Company unless claims to that effect are notified in writing by the Buyer to the Company (and in the case of claims for shortage non delivery loss or damage with a copy to the carrier if the carrier if the Company's own vehicles have not been used to deliver the Goods).
within seven days of delivery for defect, loss, damage or non compliance with the Contract or, within ten days of the date of the invoice for shortage or non delivery.
In the event of a valid claim for shortage non delivery loss damage defect or noncompliance with the Contract the Company undertakes at its option either to reprocess or replace the items concerned at its expense but shall not be under any further or other liability in connection with such non delivery loss damage or non compliance
If the Buyer shall fail to give notice in accordance with condition 7(5) above the Goods shall be deemed to be in all respects in accordance with the Contract and without prejudice to earlier acceptance by the Buyer it shall be bound to accept and pay for the same accordingly and all claims in respect of shortage, non-delivery, loss, damage, defect or non-compliance shall (subject to condition 13) thereafter be wholly barred.
If for any reason the Buyer is unable to accept delivery of the Goods at the time when the Goods are due and ready for delivery the Company may at its sole discretion without prejudice to its other rights store the Goods at the Buyer's risk and take all reasonable steps to safeguard and insure them at the Buyer's cost, provided that the Buyer shall be immediately informed thereof
The Company shall have the right to make delivery by installments of such quantities and at such intervals as it may decide, and any express provision as to installments in the Contract shall be in addition to and not in derogation of this right
If the Goods are delivered in installments the Company shall be entitled to invoice each installment as and when delivery thereof has been made and payment shall be due in respect of each installment whereof delivery has been made notwithstanding non delivery of other installments or other default on the part of the Company
GOODS supplied in accordance with the Contract cannot be returned without the Company's prior written authorization. Duly authorized returns shall be sent to the Company's Premises at the Buyer's expense.
7. CARRIAGE
Unless otherwise agreed by the Company in writing, the Contract price shall be exclusive of all costs of carriage and insurance ex the Company's Premises, and all such costs may be charged to the Buyer.
In case of export orders the Buyer shall be responsible for the payment of all carriage and insurance and shall indemnify the Company against all costs liabilities and expenses incurred by the Company in respect of such carriage and insurance
FROM the time of delivery the Goods shall be at the risk of the Buyer who shall be solely responsible for their custody and maintenance but, unless otherwise expressly agreed in writing, the Goods shall remain the property of the Company until all payments to be made by the Buyer under the Contract and any other contract between the Company and the Buyer and on any other account whatsoever have been made in full and unconditionally. Whilst the ownership of the Company continues the Buyer shall keep the Goods separate and identifiable from all other goods in its possession as bailee for the Company.
The Buyer may only resell the Goods to the Buyer's customers in the ordinary course of the Buyer's business as fiduciary and trustee for the Company. In the event of any resale by the Buyer of the Goods the beneficial entitlement of the Company shall attach to the proceeds of sale or other disposition thereof so that such proceeds or any claim thereof shall be assigned to the Company and until such assignment shall be held on trust in a separate identified account for the Company by the Buyer who will stand in a strictly fiduciary capacity in respect thereof and such proceeds shall not be mingled with other moneys or paid into any overdrawn bank account and shall at all times be identifiable as the Company's moneys.
Without prejudice to the equitable rules as to tracing, in the event of failure to pay the price in accordance with the Contract (and in particular in accordance with condition 6 herein) the Company shall have power to resell or otherwise dispose of the Goods such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise and for such purpose the Company and its servants and agents may forthwith enter upon any premises or land occupied or owned by the Buyer to remove the Goods. In the event of dispute, the Buyer shall be deemed not to have paid the Company for the Goods in the possession of the Buyer unless the Buyer can prove that payment for such Goods had been received by the Company
Pending payment of the full purchase price of the Goods the Buyer shall at all times keep the Goods comprehensively insured against loss or damage by accident fire theft and other risks usually covered by insurance for goods of this nature in an amount at least equal to the balance of the price for the same from time to time remaining outstanding. The policy shall bear an endorsement recording the Company's interest.
8. CONDITIONS AND WARRANTIES
THE Contract shall not constitute a sale by description or sample
Any conditions or warranties (whether express or implied by statute common law or arising from conduct or a previous course of dealing or trade custom or usage) as to the quality of the Goods or their fitness for any particular purpose (even if that purpose is made known expressly or by implication to the Company) or as to the correspondence of the Goods with any description or sample are hereby expressly negatived
9. DEFECTIVE GOODS
IN substitution for all rights which the Buyer would or might have but for these Conditions the Company undertakes in the case of Goods manufactured by the Company that if within three months of delivery of the Goods a serious defect in materials or workmanship appears in them (being a defect which would not be obvious on reasonable inspection of them) it will at its own discretion either credit to the Buyer in full the price paid by the Buyer to the Company for them or repair them or supply a replacement of the Goods free of charge at the place of delivery specified by the Buyer for the original Goods provided that in any case they have been accepted and paid for.
In the case of Goods not manufactured by the Company the Company will pass on to the Buyer to the extent that it is able any benefits obtainable under any warranty given by the Company's supplier provided that the Goods have been accepted and paid for
In order to exercise its rights under this condition the Buyer shall inform the Company within seven days of the date when such defect appeared or ought reasonably to have been discoverable and shall return the defective Goods carriage paid to the Company's premises
Nothing herein shall impose liability upon the Company in respect of any defect in the Goods arising out of the acts omissions negligence or default of the Buyer its servants or agents including in particular but without prejudice to the generality of the foregoing any failure by the Buyer to comply with any recommendations of the Company as to storage and handling of the Goods
Where the Goods are for delivery by installments any defect in any installment shall not be a ground for cancellation of the remainder of the installments and the Buyer shall be bound to accept delivery thereof
10. PASSING OF TITLE AND RISK
FROM the time of delivery the Goods shall be at the risk of the Buyer who shall be solely responsible for their custody and maintenance but, unless otherwise expressly agreed in writing, the Goods shall remain the property of the Company until all payments to be made by the Buyer under the Contract and any other contract between the Company and the Buyer and on any other account whatsoever have been made in full and unconditionally. Whilst the ownership of the Company continues the Buyer shall keep the Goods separate and identifiable from all other goods in its possession as bailee for the Company.
The Buyer may only resell the Goods to the Buyer's customers in the ordinary course of the Buyer's business as fiduciary and trustee for the Company. In the event of any resale by the Buyer of the Goods the beneficial entitlement of the Company shall attach to the proceeds of sale or other disposition thereof so that such proceeds or any claim thereof shall be assigned to the Company and until such assignment shall be held on trust in a separate identified account for the Company by the Buyer who will stand in a strictly fiduciary capacity in respect thereof and such proceeds shall not be mingled with other moneys or paid into any overdrawn bank account and shall at all times be identifiable as the Company's moneys.
Without prejudice to the equitable rules as to tracing, in the event of failure to pay the price in accordance with the Contract (and in particular in accordance with condition 6 herein) the Company shall have power to resell or otherwise dispose of the Goods such power being additional to (and not in substitution for) any other power of sale arising by operation of law or implication or otherwise and for such purpose the Company and its servants and agents may forthwith enter upon any premises or land occupied or owned by the Buyer to remove the Goods. In the event of dispute, the Buyer shall be deemed not to have paid the Company for the Goods in the possession of the Buyer unless the Buyer can prove that payment for such Goods had been received by the Company
Pending payment of the full purchase price of the Goods the Buyer shall at all times keep the Goods comprehensively insured against loss or damage by accident fire theft and other risks usually covered by insurance for goods of this nature in an amount at least equal to the balance of the price for the same from time to time remaining outstanding. The policy shall bear an endorsement recording the Company's interest.
11. CONDITIONS AND WARRANTIES
THE Contract shall not constitute a sale by description or sample
Any conditions or warranties (whether express or implied by statute common law or arising from conduct or a previous course of dealing or trade custom or usage) as to the quality of the Goods or their fitness for any particular purpose (even if that purpose is made known expressly or by implication to the Company) or as to the correspondence of the Goods with any description or sample are hereby expressly negatived
12. DEFECTIVE GOODS
IN substitution for all rights which the Buyer would or might have but for these Conditions the Company undertakes in the case of Goods manufactured by the Company that if within three months of delivery of the Goods a serious defect in materials or workmanship appears in them (being a defect which would not be obvious on reasonable inspection of them) it will at its own discretion either credit to the Buyer in full the price paid by the Buyer to the Company for them or repair them or supply a replacement of the Goods free of charge at the place of delivery specified by the Buyer for the original Goods provided that in any case they have been accepted and paid for.
In the case of Goods not manufactured by the Company the Company will pass on to the Buyer to the extent that it is able any benefits obtainable under any warranty given by the Company's supplier provided that the Goods have been accepted and paid for
In order to exercise its rights under this condition the Buyer shall inform the Company within seven days of the date when such defect appeared or ought reasonably to have been discoverable and shall return the defective Goods carriage paid to the Company's premises
Nothing herein shall impose liability upon the Company in respect of any defect in the Goods arising out of the acts omissions negligence or default of the Buyer its servants or agents including in particular but without prejudice to the generality of the foregoing any failure by the Buyer to comply with any recommendations of the Company as to storage and handling of the Goods
Where the Goods are for delivery by installments any defect in any installment shall not be a ground for cancellation of the remainder of the installments and the Buyer shall be bound to accept delivery thereof