Standard Terms and Conditions
1.1 In these Conditions:
"BUYER" the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller
"GOODS" means the goods (including any installment of the goods or any part for them) which the Seller is to supply in accordance with these Conditions
"SELLER" means ADAM EQUIPMENT INC., of 1 Fox Hollow Road, Oxford CT 06478
"CONDITIONS" means the standard terms and conditions of sale 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
"CONTRACT" means the contract for the purchase and sale of Goods.
"WRITING" includes telex, cable, facsimile transmission and comparable means of communication
1.2 Any reference in these conditions to any provision of a statute or regulation shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
Basis of the Sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions , which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such order is made or purported to be made, by the Buyer.
2.2 No variation to these conditions shall be binding unless agreed in Writing between the authorized representatives of the Buyer and the Seller.
2.3 The Seller's employees or agents are not authorized to make representations concerning the Goods whether as storage application or use 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 representation 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 the Seller in connection with the Goods shall be subject to correction without any liability on the part of the Seller.
Orders and Specifications
3.1 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 authorized representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller's quotation (if accepted by the Buyer) or the Buyer's order (if accepted by the Seller).
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a 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 or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller's use of the Buyer’s specifications.
3.5 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 EU requirements or, where the Goods are to be supplied to the Seller's specification, which do not materially affect their quality or performance.
3.6 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 terms that the Buyer shall indemnify the Seller in full against all loss (including loss of revenue), costs (including the cost of all labor and materials used), damages, charges and expenses incurred by the Seller as a result of
Price of the Goods
4.1 The price of the Goods shall be the Seller's quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller's price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United States, the Seller's export price list for the Buyer’s country shall apply. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, 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 labor, materials or other costs of manufacture), due to 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.
4.3 Unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller's premises, the Buyer shall be liable to pay the Seller's charges for transport, packaging and insurance together with value added tax as appropriate.
Terms of payment
5.1 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.
5.2 The Buyer shall pay the price of the Goods within 30 days of the date set forth on the Seller's invoice, unless otherwise agreed in writing by the Seller and the Seller shall be entitled to recover the price, 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.
5.3 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:
5.3.1 Cancel the contract or suspend any further deliveries to the Buyer;
5.3.2 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 Buyer); and
5.3.3 Charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 2.5 per cent per month until payment in full is made, a part of a month being treated as a full month for the purpose of calculating interest.
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller's premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller delivering the Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence 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.
6.3 If 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 to replace those not delivered over the price of the goods.
6.4 If the Buyer fails to take delivery of the Goods 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:
6.4.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.4.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall
Risks and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer.
7.1.1 In the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, or if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any others provisions of these Conditions, the right, title and interest in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
7.3 Until such time as the right, title and interest in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller's fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller's property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of the Buyer’s business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
7.4 Until such time as the right, title and interest in the Goods passes to the Buyer (and provided 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.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security 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.
Warranties and Liability
8.1 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 be free from defects in material and workmanship for a period of 24 months (unless extended or amended by the Seller in writing) from the date of delivery. Should any Goods be found to be defective when maintained and used under the conditions specified by the Seller, the Seller’s liability will be limited to the repair or replacement of the defective Goods or refund of the purchase price of the Goods, at the Seller’s sole discretion, provided that the Seller’s inspection reveals it to be defective or non-conforming within the terms of this warranty.
8.2 The above warranty is given by the Seller but the Seller shall be under no liability in respect of:
8.2.1 any defect arising from any drawing, design or specification supplied by the Buyer;
8.2.2 any defect arising from reasonable wear and tear, willful damage, negligence, abnormal working or storage Conditions, failure to follow the Seller's instructions (whether oral or in writing), misuse or alteration on repair of the Goods without the Seller's approval;
8.2.3 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;
8.2.4 The above 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
8.3 Except as provided in these conditions, all other warranties, conditions or other terms, express or implied, including without limitation the warranty of merchantability and fitness for a particular purpose are excluded to the fullest extent permitted by law.
8.4 Any claim by the Buyer 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 in writing 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.
8.5 Where any valid claim in respect of any of the Goods based on any defect in the quality of 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.
8.6 Except as expressly provided in these conditions, 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, for any special, incidental, consequential, direct or indirect loss or damage (whether for loss of profit, business, revenue, goodwill, anticipated savings or otherwise), costs, expenses or other claims for consequential compensation whatsoever and whether caused by the negligence of the Seller, it’s employees or agents or otherwise) which arise out of or in connection with the supply of the goods or their use or resale by the Buyer.
8.7 The Seller’s liability in respect of any defect or failure of the Goods supplied shall be limited to the price paid for the Goods by the Buyer. This warranty shall apply to any parts repaired or replaced under paragraph 8.1 and the time limit in respect of such parts shall operate from the date that any part is so repaired or replaced.
8.8 The Seller shall not be liable to the 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 the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the 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: acts of God, explosion, flood, tempest, fire, accident; war or threat of war, sabotage, insurrection, civil disturbance, requisition acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental authority, 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, labor, fuel, parts machinery, power failure or breakdown in machinery
9.1 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the U.S. patent, copyright, design, trade mark or other industrial or intellectual property rights or any other person, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:
9.1.1 the Seller is given full control of any proceedings or negotiations in connection any such claim;
9.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1.3 except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller.
9.1.4 the Buyer shall do nothing which would or might vitiate any policy of insurance which the Buyer may have in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy which the Buyer shall use its best efforts to do;
9.1.5 the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favor of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and
9.1.6 the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Seller is liable to indemnify the Buyer under this clause.
Insolvency of Buyer
10.1 This clause applies if:
10.1.1 The buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of reorganization); or
10.1.2 a creditor takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
10.1.3 the Buyer ceases, or threatens to cease, to carry on business or fails to pay its debts as they become due; or
10.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur and notifies the Buyer accordingly.
10.2 If this clause 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 without any liability and if the Goods have been delivered but not paid for the price shall became immediately due and payable notwithstanding any Previous agreement or arrangement to the contrary.
11.1 In these Conditions "Incoterms" means the international rules for the interpretation of trade terms of the International Chamber of Commerce in force at the date when the Contract is made. If there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
11.2 Where the Goods are supplied for export from the United States, the provisions of this clause 11 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
11.3 The Buyer shall be responsible for complying with any legislation regulations or duties governing the importation of the Goods into the country of destination.
11.4 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller's premises before shipment if the Buyer so requires. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
11.5 Payment for the Goods shall be made by the Buyer in accordance with clause 5 or as agreed in writing by the Seller.
11.6 Amendment to documents at Buyer’s request may incur charges which Seller reserves the right to levy.
12.1 All notices under these Conditions shall be in Writing addressed to other party at its registered office or principal place of business.
12.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
12.4 Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be referred to arbitration in Stamford, Connecticut in accordance with the Commercial Arbitration Rules of the American Arbitration Association by a single arbitrator appointed by mutual agreement. If the parties cannot agree on an arbitrator then the arbitrator shall be decided by a panel of three arbitrators. Each party shall select one of the arbitrators, with the third arbitrator being selected by the single arbitrator or the panel of arbitrators, as the case may be, shall be final and binding upon the parties. Either party may petition a court of competent jurisdiction to enforce an arbitration award or to seek a temporary or permanent injunction.
12.5 The Contract shall be governed by the laws of the State of Connecticut without regard to its conflict of laws principles.