The customer’s attention is drawn to the provisions of clause 4.2 & clause 9.
1.1 Definitions. In these Conditions, the following definitions apply:
Acknowledgement of Order: the written acknowledgement by the Supplier of the Customer’s order for the Goods.
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 11.6.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Force Majeure Event: has the meaning given in clause 10.
Goods: the goods (or any part of them) set out in the Order.
Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order.
Supplier: Control USA Inc., a Delaware corporation.
1.2 Construction. In these Conditions, the following rules apply:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its personal representatives, successors or permitted assigns.
(c) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
(d) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(e) A reference to writing or written includes faxes.
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues an Acknowledgement of Order, at which point the Contract shall come into existence.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.
2.5 If a Customer has a Reseller Agreement with the Supplier, the Terms and Conditions under that Agreement control and prevail in the event of conflict or ambiguity.
The Supplier will supply the Goods as set out in the Acknowledgement of Order.
4.1 The Supplier shall ensure that each delivery of the Goods is accompanied by a delivery note which shows all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered.
4.2 Deliveries, except where noted, shall be shipped Ex-Works (Incoterms 2020), Davidson NC 28036 USA, unless otherwise agreed. If the Customer requests the Supplier to make delivery arrangements, it shall be via Control’s nominated carrier. Risk of loss passes to the Customer as soon as the Goods are transferred at the Ex-Works delivery location (Davidson, NC) to either the Supplier’s or the Customer’s nominated carrier. The Customer is responsible for providing insurance provisions to cover the risk of loss while the goods are in transit.
4.3 Delivery of the Goods shall be completed when the Goods’ are available for collection or dispatch at the Ex Works Delivery Location. The Customer shall notify the Supplier of any shortages and/or of any external damage to the parcels within 3 Business Days following delivery by the carrier, or at the Ex Works location if collected by the Customer.
4.4 Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 If the Customer fails to accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day after the day on which the Supplier notified the Customer that the Goods were ready; and
(b) the Supplier shall store the Goods until delivery takes place and may charge the Customer for all related costs and expenses (including insurance).
4.6 If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
4.7 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (“warranty period”), the Goods shall be free from material defects in design, material and workmanship that substantially impairs the use of the Products.
5.2 Subject to clause 5.3, if:
(a) the Customer gives notice in writing to the Supplier during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Customer’s cost,
the Supplier shall, at its option:
(i) repair or replace the defective Goods; or
(ii) refund the price of the defective Goods in full; or
(iii) in the case of defective Goods or Goods which the Supplier cannot deliver due to them being unavailable, offer the Customer an alternative product which has the same functionality as the Goods, and if this is not acceptable to the Customer, pay the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods, the amount of such costs and expenses to be approved in advance by the Supplier.
In the event that any Goods returned to the Supplier pursuant to this clause 5.2 are found by the Supplier not to be defective, the Supplier shall be entitled to charge the Customer for any time and third-party costs it incurs in connection with such returned Goods.
5.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the Customer alters or repairs such Goods without the written consent of the Supplier; or
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
5.5 The terms implied by any legislation, to the fullest extent permitted by law, are excluded from the Contract.
5.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier in so far as the original warranty period which will not be extended further to the repaired or replacement Goods.
5.7 The Supplier’s limited warranty herein is the sole and exclusive warranty with regard to the Goods and is in lieu of and excludes all other warranties of Supplier, whether express, implied, or statutory, or otherwise created under applicable law including but not limit to, any warranty of merchantability and any warranty of fitness for particular purpose or use.
6.1 The risk in the Goods shall pass to the Customer upon completion of delivery in accordance with clause 4.3.
6.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds) for:
(a) the Goods; and
(b) any other goods or services that the Supplier has supplied to the Customer in respect of which payment has become due.
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Supplier’s bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify the Supplier immediately if it becomes subject to any of the events listed in clause 8.2; and
(f) give the Supplier such information relating to the Goods as the Supplier may require from time to time,
but the Customer may resell or use the Goods in the ordinary course of its business.
6.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been resold, or irrevocably incorporated into another product, and without limiting any other right or remedy the Supplier may have, the Supplier may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7.1 The price of the Goods shall be the price set out in the Acknowledgement of Order, or, if no price is quoted, the manufacturer’s list price in force as at the date of delivery will be applied. All goods are supplied Ex Works, Davidson NC, USA unless otherwise expressly noted in writing.
7.2 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
7.3 The Goods will be prepared and packaged for shipment by the Supplier in a commercially reasonable manner. The price of the Goods is exclusive of the costs of bespoke packaging, insurance, and transport of the Goods, which shall be invoiced to the Customer if should provisions are requested.
7.4 The price of the Goods is exclusive of federal, state, local and other excise, sales, use, property, transportation, occupational and other taxes relating to the sales, together with any penalties and expenses, all of which shall be paid by the Customer. The Customer shall be responsible for paying any and all such taxes whether or not they are stated on any invoice for Goods shipped. Customer shall indemnify and hold the Supplier harmless from and against the imposition and payment of such taxes. The Supplier, at its option, may any time separately bill the Customer for any taxes not included in the Suppliers invoices, and the Customer shall pay said taxes, or in lieu thereof, shall provide the Supplier with a tax exemption certificate acceptable to the taxing authorities.
7.5 If the Customer has been granted a credit facility the Customer shall pay the invoice in full and in cleared funds in the agreed currency without any deduction or set off within 30 days of the date of the invoice, unless otherwise agreed. Payment shall be made to the bank account nominated in writing by the Supplier. If the Customer does not have a credit facility the payment for the Goods will be due upon receipt of the Supplier’s invoice which shall be submitted to the Customer in advance of the Goods being delivered. Time of payment is of the essence.
7.6 If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest at the rate of 1.5% per month or the maximum percentage permitted by applicable law, whichever is the lesser, on all balances not paid by the Customer under the designated terms.
7.7 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
8.1 If the Customer becomes subject to any of the events listed in clause 8.2, or the Supplier reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Supplier, the Supplier may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Supplier without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
8.2 For the purposes of clause 8.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or is deemed unable to pay its debts within the meaning of Insolvency legislation or statute;
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(c) (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
(d) (being an individual) the Customer is the subject of a bankruptcy petition or order;
(e) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
(f) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
(g) (being a company) a floating charge holder over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
(h) a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
(i) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(a)to clause 8.2(h) (inclusive);
(j) the Customer suspends, threatens to suspend, cease or threatens to cease to carry on all or substantially the whole of its business;
(k) the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
(l) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8.3 Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination. Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
9.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation.
9.2 Subject to clause 9.1:
(a) to the fullest extent permitted by applicable law, the Supplier, or the manufacturer of the Goods, or their subsidiaries and affiliated companies, be liable for special, incidental, consequential, exemplary or punitive damages, including but limited to down-time, loss of profits or revenue, relating to the Goods or the purchase, sale or use of the Goods hereunder, whether or not such loss or damage is based in Contract, Tort, Statute or otherwise, regardless of whether (s) such damages were foreseeable; (b) Supplier has been advised of the possibility of such damages; or (c) the exclusive remedies provided in these terms have failed of the essential purpose; and
(b) subject to clause 5.2 the Supplier’s (and manufacturers) total aggregate liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods actually paid to the Supplier in respect of the Gods which gives rise to the claim, loss or damage regardless of the nature of the damages or losses or the legal theory or basis for the Supplier’s liability.
Neither party shall 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.
11.1 Assignment and subcontracting.
(a) The Supplier 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.
(b) The Customer 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 Supplier.
(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 11.2(a); if sent by pre-paid first class post or recorded delivery, at 9.00 am 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; or, if sent by fax, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
(a) If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
(b) 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.
11.4 Waiver. 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 failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. 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.
11.5 Third party rights. A person who is not a party to the Contract shall not have any rights under or in connection with it.
11.6 Variation. Except as set out in these Conditions, any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding when agreed in writing and signed by the Supplier.
11.7 Governing law and jurisdiction. The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed by the internal laws of Delaware, without conflicts of law provisions.
The Supplier and Customer hereby agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to these Terms, the purchase, sale or use of the goods or other transaction between them. The Customer agrees no to file any lawsuit or claim in any other jurisdiction or forum. The Supplier reserves the right to initiate ad maintain legal actions in Delaware or any other forum where the Goods or the Supplier may be located for the propose of replevying or repossessing Goods.