Terms and Conditions
1. Interpretation
1.1 In these conditions: "Company" means CES Engineering. "Goods" means the goods (including any installment of the goods or any parts for them) that the Company is to supply in accordance with these Conditions and, where the context requires, shall include associated services. "Contract" means the contract for the purchase and sale of the goods. "Customer" means any person, company, legal entity, or otherwise involved in the procurement of goods, products, or services from the Company.
1.2 The headings in these conditions are for convenience only and shall not affect their interpretation.
2. Basis of Contract
2.1 Quotations are offered, and orders are accepted subject to these conditions. Conditions of purchase contained on the customer's order forms, and any other conditions that the customer may seek to impose that are at variance with or additional to these conditions, are not binding upon the company unless specifically accepted in writing, notwithstanding that these may be contained in a later document or purport to supersede these conditions.
2.2 Unless otherwise stated, quotations are open for acceptance for 30 days from their date and, in any case, are subject to confirmation by the Company at the time of acceptance of the order.
2.3 The employees or agents of the Company are not authorized to make any representations concerning the Goods unless confirmed by the Company in writing. In entering into the Contract, the Customer acknowledges that it does not rely on, and waives any claim for breach of, any such representations that are not so confirmed.
2.4 While the company takes every precaution in the preparation of its catalogs, technical circulars, price lists, and other general literature, these documents are for the customer's general guidance only. The particulars contained therein shall not constitute representations by the Company, and the Company shall not be bound thereby.
2.5 No variation to these Conditions shall be binding unless specifically agreed to in writing by the Company.
2.6 No order that has been accepted by the company may be canceled by the customer except with the written agreement of the company and on terms that the customer shall indemnify the company in full against all loss resulting from cancellation.
3. Prices
3.1 All prices quoted are exclusive of sales, use, excise, and any other applicable taxes, duties, and tariffs, which shall be added to the invoice where applicable and paid by the customer. Where the Customer claims exemption from any such tax, a valid exemption certificate must be provided prior to shipment.
3.2 In the event of any alteration required by the customer in design, specification, or quantities, the company shall be entitled to make an adjustment to the contract price corresponding to such alteration.
3.3 The cost of carriage and packing will be charged in addition to all orders unless otherwise agreed in writing.
3.4 The Company reserves the right to impose a minimum order charge.
4. Delivery
4.1 Time is not of the essence. Although given in good faith, times quoted for delivery of goods are estimates only and are not to be treated as of the essence of the contract. The Company shall not be liable in any way for any direct or indirect loss, damage, or expense, including loss of profits and liability to third parties, which may be suffered by the Customer in consequence of late dispatch or delivery from whatever cause.
4.2 Force Majeure. The Company shall not be liable for failure to deliver goods or to do so promptly if such failure is caused by strikes, riots, lockouts or other labour trouble, war, fire, accident, mechanical failure, non-availability or delay in delivery to the Company of supplies, goods, parts or materials, government action, legislation or regulation of any kind, act of God, or any circumstances whatsoever outside the Company's reasonable control. Such delay or failure shall not affect the obligation of the customer to pay for goods already delivered.
4.3 Installments. The Company reserves the right to deliver the Goods in installments, and each delivery shall constitute a separate contract. Failure by the Company to deliver any one or more installments in accordance with these Conditions, or any claim by the Customer in respect of any one or more installments, shall not entitle the Customer to treat the Contract as a whole as repudiated.
4.4 Storage. If the customer does not supply adequate delivery instructions within 14 days after notification that the goods are ready for dispatch, the company shall be entitled to arrange storage either at its own premises or elsewhere, and all reasonable charges for storage, insurance, and demurrage shall be payable by the customer. Nothing in this condition shall relieve the Customer from making payment for the Goods as provided in Clause 8.
4.5 Where the Customer opts to arrange collection, the shipping and invoice date shall be the date of notification of availability.
4.6 Delivery dates are given in good faith but are not guaranteed. The company is not responsible for delays due to strikes, accidents, late delivery of materials, or other unforeseen circumstances.
4.7 The date of delivery shall in every case be dependent upon receipt of final instructions or approvals from the Customer.
4.8 The Company will endeavor to comply with reasonable requests for postponement of delivery but shall be under no obligation to do so. Where postponement is agreed by the Company in writing, the Customer shall pay all costs and expenses, including a reasonable charge for storage occasioned thereby.
4.9 Any offer of Goods from stock is subject to the Goods remaining unsold at the time of receipt of a written or verbal order.
4.10 The Customer shall be responsible for obtaining any import licenses and complying with all regulations governing the admission into, and use of, the Goods in the country of destination.
4.11 Where goods are delivered from a supplier of the company directly to the premises or site of the customer, or to any location designated by the customer, the company shall not be liable in any way for any direct or indirect loss, damage, or expense, including loss of profits and liability to third parties, which may be suffered by the customer in consequence of defective or damaged goods.
4.12 Where a call-off order is requested by the Customer, the Company will undertake to dispatch the Goods to the Customer's delivery address on or before the latest date of shipment specified within the quotation or sales order acknowledgment. The Customer agrees to accept delivery of the Goods under the terms of the call-off order and to pay any invoices that become due in line with the agreed payment terms.
5. Risk, Insurance, and Title
5.1 Risk shall pass to the Customer when the Goods, or the relevant part thereof, leave the premises of the Company for delivery to the Customer, notwithstanding that the Company may arrange for delivery.
5.2 Where the customer collects the goods, risk shall pass on collection.
5.3 Notwithstanding delivery and the passing of risk in the Goods, title in the Goods shall not pass to the Customer until the Company has received payment in full, in cash or cleared funds, of the price of the Goods and all other goods sold by the Company to the Customer for which payment is then due.
5.4 Until such time as the title in the Goods passes to the Customer, the Customer shall hold the Goods as bailee for the Company and shall keep the Goods separate from those of the Customer and third parties, properly stored, protected, insured, and identified as the property of the Company. The Customer shall arrange for the Company's interest to be noted on all relevant insurance policies. Until that time the Customer shall be entitled to resell or use the Goods in the ordinary course of its business but shall hold the Company's portion of the proceeds of sale, whether tangible or intangible and including insurance proceeds, in trust for the Company, and shall keep all such proceeds separate from any monies or property of the Customer and third parties.
5.5 The Company reserves a purchase money security interest in the Goods and their proceeds until payment in full is received. The Customer authorizes the Company to file such financing statements as may be necessary to perfect this interest under the Uniform Commercial Code.
5.6 Until such time as title in the Goods passes to the Customer, and provided the Goods are still in existence and have not been resold, the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company. If the Customer fails to do so forthwith, the Company may enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods, subject to applicable law.
5.7 The Customer shall not be entitled to pledge or in any way charge, by way of security for any indebtedness, any of the Goods which remain the property of the Company. If the Customer does so, all monies owing by the Customer to the Company shall, without prejudice to any other right or remedy of the Company, forthwith become due and payable.
6. Export Terms
6.1 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 the contract is made.
6.2 Where the Goods are supplied for export from the United States or elsewhere:
6.2.1 Incoterms shall apply except to the extent that they are inconsistent with any other provision of these Conditions or the Contract, which shall prevail.
6.2.2 Payment of all amounts due to the Company shall be made by irrevocable letter of credit opened by the Customer in favor of the Company and confirmed by a bank in the United States acceptable to the Company, or by such other method as the Company may agree in writing.
6.3 The Customer acknowledges that the Goods and any related technical data may be subject to the export control laws and regulations of the United States, including the Export Administration Regulations. The customer shall not export, re-export, or transfer any goods in violation of such laws and shall not supply goods to any embargoed destination or restricted party.
7. Returns
7.1 Goods cannot be returned except with the written consent of the company. Where consent is given, the following conditions must be met.
7.2 All goods must be unused and in their original packaging.
7.3 A period of 30 days from the date of dispatch must not have expired.
7.4 The Company reserves the right to impose a restocking charge.
7.5 Non-stock, custom, programmed, and special-order goods are not returnable under any circumstances.
8. Terms of Payment
8.1 Credit terms are subject to acceptance by the company's credit approval process.
8.2 Unless otherwise agreed in writing, all accounts are net 30 days from the date of invoice.
8.3 No dispute arising under the Contract, nor any delay beyond the control of the Company, shall interfere with prompt payment by the Customer.
8.4 In the event of default, the Customer will permit the Company or its agent to enter the premises where the Goods are kept and remove the same, subject to applicable law. The customer will be responsible to the company for all costs incurred in reclaiming the goods.
8.5 The Company may refuse to carry out any work or supply any other goods until all overdue monies have been paid.
8.6 In the event that the customer fails to make payment for the goods on the due date or otherwise commits a breach of these conditions, the company may, in its absolute discretion and without prejudice to any other rights:
8.6.1 Suspend all future deliveries to the Customer under the Contract without liability;
8.6.2 Require payment in advance for any future deliveries; and
8.6.3 Charge interest on the amount overdue at the rate of one and one-half percent (1.5%) per month, or the maximum rate permitted by applicable law, whichever is lower, from the date payment became due until the date of actual payment. The Customer shall also be liable for all reasonable costs of collection, including attorneys' fees.
8.7 The Company shall have the same rights referred to in Clause 8.6 if the Customer becomes insolvent, makes an assignment for the benefit of creditors, or has a petition filed by or against it under the United States Bankruptcy Code.
8.8 The Customer shall not be entitled to withhold payment of any sums after they become due by reason of any right of set-off or counterclaim that the Customer may have or allege to have, or for any other reason whatsoever.
9. Shortages and Defects Apparent on Inspection
9.1 Any claim for shortages or defects apparent on inspection will only be considered if:
9.1.1 The customer inspects the goods within 3 days of delivery;
9.1.2 Any complaint is made to the Company in writing prior to the expiry of seven days from delivery; and
9.1.3 The Company is given the opportunity to inspect the Goods.
9.2 If a complaint is not made as herein provided, the goods shall be deemed to be in all respects in accordance with the contract, and the customer shall be bound to pay accordingly.
9.3 The Company shall be under no liability in respect of any defect arising from any drawing, design, or specification supplied by the Customer.
9.4 The Company shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Company's instructions, whether oral or written, misuse, or alteration or repair of the Goods without the Company's approval.
9.5 The Company shall be under no liability under any warranty, condition, or guarantee if the total price for the Goods has not been paid by the due date for payment.
10. Warranty
10.1 Subject to Clause 9, the Company agrees to replace or repair, at its option, goods or parts of goods supplied by the Company and proved to the Company's satisfaction to be faulty, excepting fair wear and tear or damage due to misuse or faulty operation, provided that such fault is notified within the applicable manufacturer's warranty period.
10.2 Goods are supplied subject to the warranty of the original manufacturer only. The Company passes through to the Customer such manufacturer warranties as are assignable.
10.3 EXCEPT AS EXPRESSLY SET OUT IN THESE CONDITIONS, THE COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE REMEDIES SET OUT IN THIS CLAUSE 10 ARE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDIES.
11. Limitation of Liability
11.1 The Customer agrees that apart from the express terms and conditions contained herein, or in the quotation, or in any document expressly stipulated therein to form part of the Contract, no statement or representation has been made by the Company relating to the Goods supplied. If any such statement or representation has been made, the Customer warrants that it understood it to be a statement of opinion only and did not rely on it.
11.2 IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF PRODUCTION, LOSS OF DATA OR BUSINESS INTERRUPTION, ARISING OUT OF OR IN CONNECTION WITH ANY DEFECT IN OR FAILURE OF GOODS SUPPLIED, WHETHER SUCH CLAIM ARISES IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.3 THE COMPANY'S TOTAL LIABILITY, WHETHER IN RESPECT OF ONE CLAIM OR IN THE AGGREGATE, ARISING OUT OF ANY CONTRACT SHALL NOT EXCEED THE PURCHASE PRICE PAYABLE UNDER THAT CONTRACT.
11.4 Nothing in these Conditions excludes or limits liability for death or personal injury caused by the Company's negligence or for any other liability that cannot be excluded under applicable law.
12. Confidential Information
12.1 All drawings, documents, invoices, and other information supplied by the Company are supplied on the express understanding that the Customer will not, without the written consent of the Company:
12.1.1 Give away, loan, exhibit, or sell any such drawings, or extracts or copies thereof;
12.1.2 Use them in any way except in connection with the components for which they are issued.
13. Customer Drawings
13.1 The Company accepts no responsibility for the accuracy of information or drawings supplied by the Customer.
13.2 The Customer shall indemnify the Company from and against all actions, claims, costs, and proceedings that arise due to the manufacture of components to the drawings and specifications of the Customer, where such drawings and specifications are at fault, or where it is alleged that they may involve an infringement of a patent, registered design, copyright, or other exclusive right.
14. Product Data
14.1 Illustrations, weights, measures, specifications, and performance schedules set out in the sales literature of the Company are statements of opinion, are provided for information only, and form no part of the Contract. Product data is derived in part from manufacturer sources, and the Company does not warrant its accuracy or completeness.
15. Certification
15.1 Any certification required by the Customer must be specified on the official order and may be subject to additional charges. The Company reserves the right to charge for the supply of any retrospective certificates.
16. Force Majeure
16.1 The Company shall be under no liability for any delay, loss, or damage caused wholly or in part by act of God, government restriction, condition, or control, or by reason of any act done or not done pursuant to a trade dispute, whether such dispute involves the Company's employees or not, or by reason of any other act, matter, or thing beyond the reasonable control of the Company.
17. General
17.1 No waiver by the Company of any breach of the Contract by the Customer shall be considered a waiver of any subsequent breach of the same or any other provision.
17.2 The Contract shall be governed by and construed in accordance with the laws of the State of Delaware, United States, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be subject to the exclusive jurisdiction of the state and federal courts located in the State of Delaware, and the parties consent to the personal jurisdiction of such courts.
17.3 Where Goods are supplied by the Company on a consignment or call-off basis, the Customer undertakes to take receipt of all Goods specified within the consignment or call-off order no later than the latest date of shipment defined at the time of purchase.
17.4 If any provision of these Conditions is held to be invalid or unenforceable, that provision shall be severed and the remaining provisions shall continue in full force and effect.
17.5 These Conditions, together with the Company's quotation and order acknowledgment, constitute the entire agreement between the parties and supersede all prior discussions and understandings.
CES Engineering 4 Peddlers Row, Unit #18 Newark, DE 19702 United States
Email: info@ces-engineering.com Telephone: (718) 670 3305