Definitions and interpretation
1.1 In these Conditions (unless the context otherwise requires) the following words and phrases shall have the following meanings: "Business Day" means any day other than Saturday, Sunday or any public holiday in the jurisdiction in which the Seller is based; "Buyer" means a person to whom the Seller supplies or is to supply Goods pursuant to a Contract; "Conditions" means these terms and conditions of sale; "Contract" means a contract for the sale of Goods made by or on behalf of the Seller with a Buyer; "Goods" means the Goods which the Seller supplies pursuant to a Contract; "Group" means JSP and any of its Subsidiaries; "JSP" means JSP International SARL a company incorporated under the laws of France whose principal place of business is at Z1 Le Bois Chevalier, 60190 Estrées, Saint Denis; "Order" means an order in writing for the Goods received by the Seller from the Buyer; "Sales Tax" means any sales, value added or similar taxes imposed in respect of the sale of Goods to the Buyer; "Seller" means the company in the JSP Group referred to overleaf; "Subsidiary" means any company in which another company holds a majority of the voting rights in it, or is a member of it and controls alone, pursuant to an agreement with other members, a majority of the voting rights in it, or if it is a subsidiary of a company that is itself a subsidiary of that other company.
1.2 In these Conditions (unless the context otherwise requires):
A. construction of these Conditions shall ignore the headings (all of which are for reference only); and
B. any reference to any legislative provision shall be deemed to include any subsequent re-enactment or amending provision.
Application of conditions and formation of Contract
2.1 The Seller makes offers and accepts Orders only upon and subject to the following Conditions, which shall form part of any Contract to the exclusion of all other terms and conditions including any terms and conditions which the Buyer may purport to apply under any purchase order or similar document save as otherwise agreed in writing by the Seller. No Contract will be created until a written notice of confirmation of the Order has been given by the Seller or (if earlier) the Goods are dispatched to the Buyer.
2.2 The Seller reserves the right to refuse to accept any Order on any grounds whatsoever. Any variation of these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable and the Seller shall not be bound thereby, unless such variation is agreed in writing by the Seller.
Prices and payment
3.1 All prices quoted by the Seller shall remain subject to revision without notice at any time prior to dispatch and, unless otherwise agreed, all Orders are accepted by the Seller on condition that they are executed and payment is made at the prices prevailing on the date when the Goods are dispatched.
3.2 Unless otherwise agreed in writing the purchase price and any Sales Tax shall be paid by the Buyer, without set-off or counterclaim, not later than 30 days from the date of the invoice, time being of the essence. If for any reason the Buyer is unable or unwilling to take delivery when the Goods are ready for dispatch then payment may not be withheld or deferred.
The Buyer shall be liable to pay interest on unpaid invoices at an annual rate equal to EURIBOR plus 5 per cent in respect of the period from the date when payment for the Goods becomes due until the date when payment is actually made. Interest will accrue on a daily basis, after as well as before any judgment. The Buyer will reimburse the Seller for all costs and expenses (including legal fees and expenses on an indemnity basis) incurred in the collection of any overdue payment, plus a minimum lump sum of €40.00 per overdue invoice. No discounts are permitted for anticipated payments.
4.1 Delivery of the Goods shall take place in accordance with the relevant Incoterm as referred to in the Seller's Order confirmation and as defined in Incoterms 2010 as the same may be amended, updated or replaced from time to time.
4.2 The dates mentioned in any quotation, Order, Order confirmation or elsewhere for the delivery of the Goods are approximate only and time for delivery is not of the essence and shall not be made so by the service of notice. The Seller accepts no liability for failure to deliver on or by a particular date or dates.
4.3 The Seller will have fulfilled its Contractual obligations in respect of each delivery of Goods provided that the quantity actually delivered is not more than 10 per cent more or less than the quantity specified in the Contract. The Buyer shall pay for the quantity actually delivered.
Acceptance of the Goods
5.1 The Buyer shall be deemed to have accepted the Goods 24 hours after delivery to the Buyer.
5.2 After acceptance the Buyer shall not be entitled to reject any Goods which are not in accordance with the Contract.
Title and risk
6.1 Risk and liability in respect of the Goods shall pass to the Buyer in accordance with the relevant Incoterm as specified in the Order confirmation issued by the Seller, but property and ownership in the Goods shall not pass from the Seller to the Buyer until:
A. the Seller has received payment in full and unconditionally for the Goods; and
B. no other sums are then outstanding from the Buyer to the Seller on any account whatsoever, whether or not such sums have become due for payment.
6.2 Until property in the Goods passes to the Buyer in accordance with Condition 6.1, the Buyer shall hold the Goods on a fiduciary basis as bailee for the Seller and shall not permit any charge, lien or other encumbrance whatsoever to be created over the Goods. The Buyer shall store the Goods separately from all other goods in its possession and in a safe place adequately protected from the elements and marked in such a way that they are clearly identifiable as the Seller’s property. The Buyer shall insure and keep insured the Goods to their full value against all risks until the date that property in the Goods passes from the Seller and shall upon reasonable notice furnish the Seller with satisfactory evidence that adequate policies of insurance are being maintained and that the premiums are paid up to date. The Buyer may not process, transform, modify incorporate the Goods in or combine the Goods with any other goods or materials until property in the Goods passes to the Buyer in accordance with Condition 6.1.
6.3 The Buyer gives to the Seller, its servants or agents irrevocable authority to enter any land or any building, vehicle or vessel or other place upon which such Goods are reasonably thought to be situated without notice for the purpose of collecting and removing Goods in which property has not passed in accordance with Condition 6.1. Where the Goods are situated on the premises of a third party which holds those Goods on behalf of the Seller, the Buyer shall procure that the third party stores those Goods separately and clearly marked as the Seller’s property, that it consents to such entry and removal and that it relinquishes any claim it may have in respect of those Goods.
6.4 Buyer may not deal with, part with possession of, consume or otherwise dispose of the Goods until property and ownership in them has passed to the Buyer under this Condition.
6.5 The Goods are being sold for processing or incorporation into a part, component or product and not for resale. Buyer is not authorised to act as a seller, dealer or distributor of the Goods and any resale of the Goods by Buyer is strictly prohibited.
7.1 The Seller warrants that the Goods will for a period of 90 days from the date of delivery:
A. comply with their specification; and
B. be substantially free from defects in materials and workmanship.
7.2 The warranties in Condition 7.1 are given on the following conditions:
A. the Seller is not liable for a defect in the Goods caused by fair wear and tear, abnormal or unsuitable conditions of storage or use or an act, neglect or default of the Buyer or a third party; and
B. the Seller is not liable for a defect in the Goods unless it is notified to the Seller as soon as reasonably practicable after its appearance.
7.3 For any Goods manufactured by the Seller which do not conform with Condition 7.1, the Seller shall subject to Condition 7.2 free of charge replace such Goods where the non-conformity appears prior to transformation of the Goods, provided that:
A. such non-conformity shall be found to the Seller’s reasonable satisfaction to have arisen solely from the Seller’s act or omission; and
B. the non-conforming Goods shall be returned to the Seller’s factory at the Buyer’s expense if so requested by the Seller. Where the non-conformity becomes apparent after transformation, the Seller shall only be liable under this Condition if the Buyer gives the Seller notice of such non- conformity within 48 hours of the time of transformation and if the Buyer can demonstrate to the Seller’s reasonable satisfaction that the non-conformity arose as a result of the Seller’s act or omission and that the Buyer has used processes to transform the Goods that complied strictly with the Seller’s instructions and generally recognised industry best practice.
7.4 Any replaced Goods shall be redelivered by the Seller free of charge to the original point of delivery but otherwise in accordance with and subject to these Conditions.
7.5 If the Seller becomes liable to replace Goods in accordance with Condition 7.3 the Seller may instead, in its absolute discretion, refund the price of the defective Goods in the event that the price shall already have been paid by the Buyer to the Seller, or, if the price has not been so paid, to relieve the Buyer of all obligation to pay the same by the issue of a credit note in favour of the Buyer in the amount of the price.
7.6 The Seller’s liability under this Condition shall be to the exclusion of all other liability to the Buyer whether contractual, tortious or otherwise for defects in the Goods or for any loss, damage to or injury caused by the Goods, and all other conditions, warranties, stipulations or other statements whatsoever concerning the Goods, whether express or implied, by statute, at common law or otherwise howsoever, are hereby excluded to the fullest extent permitted by law in particular (but without limitation of the foregoing) the Seller grants no warranties regarding the fitness for purpose, performance, use, nature or quality of the Goods, whether express or implied, by statute, at common law or otherwise howsoever.
7.7 Any liability of the Seller to the buyer with respect to the Goods shall in no circumstances exceed the purchase price for the Goods. The Seller shall in no circumstances be liable for indirect or consequential losses suffered by the Buyer or for any of the following losses whether direct or indirect: loss of actual or anticipated profit, loss of business opportunity, loss of anticipated savings, loss of goodwill or injury to reputation incurred by the Buyer.
8.1 If the Seller is unable, through circumstances beyond its control (including, without limitation, lack of delivery instructions from the Buyer) to deliver the Goods within 14 days after notification to the Buyer or its agent that the Goods are ready for delivery, the Seller shall be entitled to arrange storage of the Goods on behalf of the Buyer, whereupon delivery shall be deemed to have taken place, all risk in the Goods shall pass to the Buyer, and delivery to the Buyer of the relevant warehouse receipt shall be deemed to be delivery of the Goods for the purpose of Condition 6.1. All charges incurred by the Seller for storage or insurance shall be paid by the Buyer within 30 days of submission of an invoice.
9.1 In the event of any of the following:
A. the Buyer fails to pay for the Goods by the due date;
B. the Buyer fails to pay any other debt due and payable to the Seller;
C. the Buyer fails to take delivery of the Goods;
D. the Buyer commits any breach of these Conditions; or
E. the Buyer makes any arrangement with or composition for the benefit of its creditors, any petition for the winding-up of the Buyer (being a limited company) is passed or presented (other than for the purposes of amalgamation or reconstruction) or (being an individual or partnership) bankruptcy proceedings are commenced or if a receiver or administrative receiver, administrator or manager is appointed over the whole or any part of the Buyer’s business or an equivalent event occurs with respect to the Buyer in any jurisdiction;
then the provisions of Conditions 9.2, 9.3 and 9.4 shall apply.
9.2 All sums outstanding in respect of any Goods supplied by the Seller (whether or not such sums have become due for payment), shall immediately become payable and shall bear interest from the date on which they become payable until the date of actual payment (as well after payment as before) at the rate specified in Condition 3.2.
9.3 The Seller may at its absolute discretion and without prejudice to any other rights it may have, suspend all deliveries of Goods under any Contract and/or terminate such Contracts without further notice and liability on its part.
9.4 The Buyer shall immediately place any Goods in its possession or under its control at the Seller’s disposal and the Seller’s representatives shall have (without prejudice to any of its other rights and remedies) the right to enter the Buyer’s premises and retake possession of such Goods.
10.1 Once a Contract subsists between the Buyer and the Seller it cannot be cancelled by the Buyer except with the Seller’s consent and upon terms which will indemnify the Seller against all losses incurred by the Seller as a result of such cancellation.
11.1 The Seller shall not be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event. A "Force Majeure Event" means any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
12.1 If any provision of these Conditions or of any Contract of which these Conditions form part shall be held to be illegal, void, invalid or unenforceable under the laws of any jurisdiction, the legality, validity and enforceability of the remainder of these Conditions or such Contract in that jurisdiction shall not be affected, and the legality, validity and enforceability of the whole of these Conditions and such Contract shall not be affected in any other jurisdiction. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
12.2 No failure by the Seller to exercise, nor any delay by the Seller in exercising, any of its rights, powers, privileges or remedies under these Conditions shall impair or operate as a waiver thereof, nor prevent the Seller subsequently enforcing any right, power, privilege or remedy or treating any breach by the Buyer as a repudiation of Contract. A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
12.3 The Seller may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Buyer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Seller.
12.4 A. Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first-class post, recorded delivery, commercial courier or fax.
B. A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.4A; if sent by pre-paid first-class post or recorded delivery, at 9.00am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; if sent by pre-paid international airmail, at 9.00a.m. on the fourth Business Day after the date of posting, if sent by fax, one Business Day after transmission; or if by email, at noon on the Business Day after such message was sent and, in proving service, it shall be sufficient to produce a computer print out indicating that the message was sent to the recipient's email address.
C. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
12.5 A person who is not a party to the Contract shall not have any rights under or in connection with it.
12.6 The English language version of these terms and conditions is the definitive version and for the purposes of interpretation shall prevail over all other language versions.
Law and jurisdiction
13.1 These Conditions and any Contract of which they form part shall be governed by, and construed in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English courts.