THE BUYER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 10.4
1.1. In these Conditions the following words have the following meanings:
“the Buyer” means the person(s), firm or company who purchases the Goods from the Company;
“the Company” means Tamper Technologies USA, Inc. (Tampertech), a Georgia Corporation whose headquarters is situated at 535 Pine Road, Suite 207, Newnan, Georgia 30263;
“Contract” means any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these Conditions;
“Contract Price” means the Price for the Goods as agreed between the parties in accordance with condition 7;
“Delivery Point” the place where delivery of the Goods is to take place under condition 4;
“Goods” any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
1.2. In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3. In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.4. In these Conditions headings will not affect the construction of these Conditions.
2. APPLICATION OF TERMS
2.1. Subject to any variation under condition 2.3 the Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2. No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3. These Conditions apply to all the Company’s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by an authorized officer of the Company.
2.4. Each order for Goods by the Buyer to the Company shall be deemed to be an offer by the Buyer to purchase Goods from the Company subject to these Conditions.
2.5. No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of such order is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.
2.6. The Buyer must ensure that the terms of its order and any applicable specification are complete and accurate.
2.7. A quotation for the Goods given by the Company shall not constitute an offer. Any quotation is given on the basis that no contract will come into existence until the Company despatches a written acknowledgement of such order to the Buyer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
3.1. The description of the Goods shall be as set out in the Company’s quotation.
3.2. All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of this Contract.
4.1. Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Buyer’s place of business.
4.2. Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If dates are so specified, delivery will be within a reasonable time.
4.3. Subject to the other provisions of these Conditions the Company will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.4. If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
4.4.1. risk of loss and ownership in the Goods will pass to the Buyer;
4.4.2. the Goods will be deemed to have been delivered; and
4.4.3. the Company may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.5. The Buyer will provide at its expense at the Delivery Point adequate and appropriate equipment and manual labour for unloading the Goods.
4.6. If the Company delivers to the Buyer a quantity of Goods of up to 10% more or less than the quantity accepted by the Company the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.7. The Company may deliver the Goods by installments, which shall be involved and paid for separately. Each installment shall constitute a separate Contract. Any delay in delivery or defect in an installment shall not entitle the Customer to cancel any other installment.
5.1. The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2. The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless the Buyer gives written notice to the Company that the Goods have not been received within 24 hours of the date when the Goods should in the ordinary course of events have been received.
5.3. Any liability of the Company for non-delivery of the Goods shall be limited to replacing the Goods with reasonable time or issuing a credit note at the pro rata Contract rate any invoice raised for such Goods.
6.1. Unless otherwise agreed by the Company in writing the Contract Price for the Goods shall be the price set out in the Company’s price list published on the date of delivery or deemed delivery.
6.2. The Contract Price for the Goods shall be exclusive of any sales tax, if applicable, are all costs or charges in relation to loading, unloading, carriage and insurance all of which amounts the Buyer will pay in addition when it is due to pay for the Goods.
7.1. Payment of the Contract Price for the Goods is due unless otherwise agreed in writing between the parties on the last working day of the month following the month in which the Goods are delivered or deemed to be delivered.
7.2. Time for payment shall be of the essence.
7.3. No payment shall be deemed to have been received until the Company has received cleared funds.
7.4. All payments payable to the Company under the Contract shall become due immediately upon termination of this Contract despite any other provision.
7.5. The Buyer shall make all payments due under the Contract without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
7.6. If not paid within 30 days of when due, sums owed shall bear interest at 1 and 1/2% percent per month (18% annually) until paid, or the highest interest rate permitted by applicable law, whichever is higher.
8.1. The Company warrants that (subject to the other provisions of these Conditions) the Goods will:
8.1.1. be of good and workmanlike quality and are sold with no express or implied warranties not made herein;
8.1.2. be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to the Company in writing and the Company has informed in writing that it is reasonable for the Buyer to rely on the skill and judgement of the Company.
8.2. The Company shall not be liable for a breach of any of the warranties in condition 9.1 unless:
8.2.1. the Buyer gives written notice of the defect to the Company, and (if the defect is as a result of damage in transit) to the carrier, within 21 days of the time when the Buyer discovers or ought to have discovered the defect; and
8.2.2. the Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Company’s cost for the examination to take place there.
8.3. The Company shall not be liable for a breach of any of the warranties in condition 9.1 if:
8.3.1. the Buyer makes any further use of such Goods after giving such notice; or
8.3.2. the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
8.3.3. the Buyer alters or repairs such Goods without the written consent of the Company.
8.4. Subject to conditions 9.2 and 9.3, if any of the Goods do not conform with any of the warranties in condition 9.1 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Company’s expense, return the Goods or the part of such Goods which is defective to the Company.
8.5. If the Company complies with condition 9.4 it shall have no further liability for a breach of any of the warranties in condition 9.1 in respect of such Goods.
8.6. Any Goods replaced will belong to the Company.
9. LIMITATION OF LIABILITY
9.1. Subject to condition 9, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
9.1.1. any breach of these Conditions; and
9.1.2. any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
9.2. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.3. Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company’s negligence or fraudulent misrepresentation or for any other matter in respect of which it would be unlawful for the Company to exclude or restrict liability.
9.4. Subject to conditions 10.2 and 10.3:
9.4.1. the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the Contract Price; and
9.4.2. the Company shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever or howsoever caused which arise out of or in connection with the Contract.
10.1. The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
10.2. The Company may assign the Contract or any part of it to any person, firm or company.
11. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protects, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials provided that, if the event in question continues for a continuous period in excess of 30 days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
12.1. Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
12.2. lf any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
12.3. Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract will not be construed as a waiver of any of its rights under the Contract.
12.4. Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Contract.
12.6. The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by the laws of the State of Georgia, and the parties submit to the exclusive jurisdiction of the Courts of Fulton County, Georgia, which is the mandatory and only place for dispute resolution.
13.1. All notices or other communications given to a party pursuant to the Contract must be in writing and delivered by e-mail, prepaid certified first class mail (return receipt requested) or by express courier with signature required (e.g., FedEx, UPS, etc.):
13.1.1. (in case of notices or other communications to the Company) to its registered office, 8 Briarpatch Lane, Newnan, Georgia 30265 or such changed address as shall be notified to the Buyer by the Company; or
13.1.2. (in the case of notices or other communications to the Buyer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of this Contract or such other address as shall be notified to the Company by the Buyer.
13.2. Notices or other communications shall be deemed to have been received:
13.2.1. if sent by prepaid certified first class mail (return receipt requested) on the date of the signed return receipt;
13.2.2. if delivered by express courier, on the date of signature to the carrier, on the day of delivery;
13.2.3. if sent by e-mail on a working day prior to 5.00 pm, at the time of transmission and otherwise on the next working day.
13.3. Notices or other communications addressed to the Company shall be marked for the attention of the President,
Tamper Technologies USA, Inc., 535 Pine Road, Suite 207, Newnan, Georgia 30263.