1.1 These general terms and conditions (“Terms and Conditions”) apply to all offers, quotations and sales of goods and/or services by Top-Teks Limited (“Top-Teks”) to any purchaser or potential purchaser (“Buyer”). If Top-Teks and Buyer have entered into a separate written contract relating to the sales of products, or the provision of services, including without limitation a reseller or distributor agreement these Terms and Conditions shall additionally apply to purchases under the separate agreement to the extent they are not inconsistent with the terms of the separate agreement.
1.2 Any agreement between Top-Teks and Buyer shall be binding only if and to the extent that an individual order is expressly accepted by Top-Teks in writing. Top-Teks shall have full discretion in accepting or rejecting any order.
1.3 Except as set forth in Condition 1.1 above, these Terms and Conditions shall be exclusive of and prevail over all other terms or conditions, written or oral, implied by trade custom or course of dealing, wherever appearing or however introduced (including those in catalogues specifications or any Buyer general terms and conditions, request for quotation, order or confirmation) unless expressly otherwise agreed by Top-Teks in writing. All other terms or conditions are expressly rejected by Top-Teks. Buyer agrees to be bound by these Terms and Conditions whether or not expressly so stated in any order, confirmation or otherwise. Each deviation from or modification of these Terms and Conditions requires the express written agreement of Top-Teks in each instance. Modification or waiver of any provision in one instance shall not constitute modification or waiver in any other instance.
1.4 Buyer may not without Top-Teks’ prior written consent assign all or any of its rights under any contract incorporating these conditions.
1.5 Any reference in these terms and conditions to Top-Teks shall be taken to include T2 Direct.
No quotation of Top-Teks shall constitute an offer.
3.1 Goods are supplied in accordance with Top-Teks standard specifications but Top-Teks reserves the right to make such improvements and modifications in such specifications without prior notice as it or its suppliers consider desirable in the circumstances, without obligation to modify or change any goods previously delivered or to supply new goods in accordance with earlier specifications, unless Top-Teks agrees otherwise in writing at the date of reservation of the goods.
3.2 If Top-Teks or its suppliers wish to make any improvements or modifications to any goods to be supplied to Buyer that would affect form, fit or function Top-Teks shall not implement such improvement or modification without the agreement of Buyer.
3.3 If Buyer wishes to change the specification of any goods to be supplied by Top-Teks then Top-Teks shall not be obliged to agree to such change. If Top-Teks does agree to any proposed change requested by Buyer Top-Teks shall be entitled to adjust the price, delivery and warranty accordingly.
3.4 All technical information and particulars of goods and performance given by Top-Teks are given as accurately as possible but are not to be treated as binding or as forming part of any contract with Buyer unless specifically confirmed or agreed by Top-Teks in writing.
The specification for packaging the goods shall be entirely at the discretion of Top-Teks who shall have the right to pack all goods in such manner, with such materials, and in such quantities as Top-Teks thinks fit and shall not be obliged to comply with any packaging instructions or requests from Buyer. The cost of special packaging, if agreed or deemed necessary by Top-Teks, shall be an additional charge.
Prices are subject to alteration by Top-Teks at any time without prior notice. Top-Teks shall notify Buyer of any alteration in price, whereupon Buyer may cancel the contract (without liability to Top-Teks) by giving notice in writing to Top-Teks within 7 days. Buyer shall bear the cost of any applicable sales, value added, excise, or similar tax in relation to the goods unless Buyer provides Top-Teks with a tax exemption certificate or licence acceptable to the taxing authorities before shipment.
Unless otherwise agreed in writing, all payments by Buyer for the goods and/or services shall be made to Top-Teks in accordance with the “Credit and Settlement Terms”. Without prejudice to Top-Teks other rights and remedies including the right in any event to sue for the price whether or not the property in the goods has been passed, interest at the rate specified in the “Credit and Settlement Terms” may be charged on the amount of any overdue account from the due date until the date of final settlement.
The risk of loss or damage to the goods shall pass to Buyer upon delivery of the goods at Buyer’s authorised trading premises specified in the order by Buyer or to a carrier on Buyer’s behalf (whichever is sooner) whereupon Buyer shall be responsible for obtaining and paying for appropriate insurance.
8. Property in Goods
8.1 Top-Teks shall retain title to the goods until it has received payment in full of all sums due in connection with the supply of all goods and services to Buyer at any time. For these purposes Top-Teks has only received payment when irrevocably credited to its bank account.
8.2 If any goods owned by Top-Teks are attached to, mixed with, or incorporated into other goods not owned by Top-Teks, and are not identifiable or separable from the resulting composite or mixed goods, title to the resulting composite or mixed goods shall vest in Top-Teks and shall be retained by Top-Teks for so long as and on the same terms on which it would have retained title to the goods in question.
8.3 Buyer shall store goods owned by Top-Teks in such a way that they are clearly identifiable as Top-Teks property, shall maintain records of such goods identifying them as Top-Teks property, of the persons to whom it sells or disposes of such goods and of the payment made by such person for such goods. It will allow Top-Teks to inspect these records and the goods themselves on request. All goods supplied by Top-Teks in Buyer’s possession shall be presumed to belong to Top-Teks (unless Buyer can prove otherwise).
8.4 Top-Teks shall be entitled to trace the proceeds of sale and any insurance proceeds received in respect of goods owned by Top-Teks immediately prior to their sale. Such proceeds shall be held by Buyer on trust for Top-Teks.
8.5 If Buyer fails to make any payment to Top-Teks when due, enters into bankruptcy, liquidation or receivership or a composition with its creditors, has a receiver, administrator, or manager appointed over all or part of its assets, or becomes insolvent, or ceases to trade or if Top-Teks has reasonable cause to believe that any of these events is likely to occur, Top-Teks shall have the right, without prejudice to any other remedies:
8.5.1 to enter without prior notice any premises where goods owned by Top-Teks may be, and to repossess and dispose of any goods owned by Top-Teks so as to discharge any sums owed to Top-Teks by Buyer.
8.5.2 to require Buyer not to resell or part with possession of any goods owned by Top- Teks until Buyer has paid in full all sums owed by it to Top-Teks;
8.5.3 to withhold delivery of any undelivered goods and stop any goods in transit. Unless Top-Teks expressly elects otherwise any contract between Top-Teks and Buyer for the supply of goods shall remain in existence notwithstanding any exercise by Top-Teks of its rights under this clause.
Any complaints against Top-Teks must be made within one month of the date upon which Buyer became aware or ought to have become aware of the circumstances giving rise to the complaint. All complaints not so filed are waived.
10.1 Top-Teks warrants that goods sold hereunder shall be free of defects in materials and workmanship and will conform to any agreed specification(s) at the time of delivery and for such period thereafter, if any, as notified by Top-Teks to Buyer in writing. If Buyer alleges that the goods were defective at the time of delivery to Buyer, Buyer shall forthwith notify Top-Teks in writing of the alleged defects and shall, at Top-Teks’ option, return the goods and packing at its own expense to Top-Teks or, where so directed, hold the goods and packing for inspection by Top-Teks. If the goods are proved to have been defective at the time of delivery Top-Teks undertakes to arrange for the repair or replacement of such defective goods free of charge.
10.2 Top-Teks shall indemnify Buyer against any cost or damages arising out of any court judgement or final arbitral award that the normal use or possession of the goods (but not goods incorporating the goods supplied by Top-Teks) infringe the property rights of any third party provided (i) Buyer is in compliance with these Terms and Conditions, (ii) Top-Teks is given immediate and complete control of such claims,(iii) Buyer does not prejudice Top-Teks’ defence to such claim and (iv) Buyer gives Top-Teks all reasonable assistance with such claim. Top-Teks shall have the right to replace or change all or any part of any goods in order to avoid infringement. The forgoing states the entire liability of Top-Teks to Buyer in respect of the infringement of the intellectual property rights of any third party.
Top-Teks’ liability hereunder shall not exceed the price paid by Buyer to Top-Teks for any infringing or allegedly infringing goods. Buyer shall provide Top-Teks with an identical indemnity, mutatis mutandis, for any claim against Top-Teks that arises from any goods of Buyer that incorporate goods supplied by Top-Teks.
10.3 The express warranty and undertaking above shall be the full extent of Top-Teks liability in respect of the sale of goods or supply of services. Accordingly, Top-Teks disclaims all other liability for loss or damage howsoever caused (except for death or personal injury resulting from proved negligence) arising out of the purchase, possession, sale or use by Buyer of any goods or services provided and all other terms, conditions, and warranties express or implied whether statutory, arising out of trade usage or otherwise are hereby excluded. In no event shall Top-Teks be liable for any special, incidental or consequential damages including, but not limited to the infringement of any intellectual property rights, delays, or inaccurate information or advice.
11. Confidential Information
11.1 Buyer shall not, without Top-Teks written consent, disclose to any third party any secret or confidential information supplied by Top-Teks to Buyer.
11.2 Buyer shall not copy or reproduce any drawings, specifications, or other written material supplied by Top-Teks in connection with the goods or any of the goods themselves or any part thereof.
12. Compliance with Law
Buyer expressly agrees that it will not export or permit export of any Top-Teks goods, or use or permit the use of any Top-Teks goods, other than in accordance with all applicable laws (including complying with and obtaining appropriate permits in accordance with all applicable export and customs laws).
13. Force Majeure
Top-Teks shall, without prejudice to any other provisions hereof, be entitled to cancel or rescind any contract and shall not be liable for any loss or damage if its ability to perform its obligations under the contract is in any way adversely affected for any reason whatsoever not within Top-Teks control, or by commercial infeasibility including the failure by Top-Teks suppliers to fulfil their obligations, the denial or cancellation of necessary permits or licenses or substantial increases in the costs of performance.
14. Buyer’s Default
Should Buyer make default in any payment or otherwise be in breach of its obligations to Top-Teks under these Terms and Conditions or compound with or execute an assignment for the benefit of its creditors or commit any act of bankruptcy or being a company enter into voluntary or compulsory liquidation or suffer a receiver, administrator or manager to be appointed over all or part of its assets or take or suffer any similar action in consequence of debt, Top-Teks may, without prejudice to any other rights, cancel any undelivered or uncompleted portion of the order and stop any goods in transit.
15. Cancellation of Orders
15.1 No cancellation of any order by Buyer shall be accepted by Top-Teks unless: i) the cancellation is received by Top-Teks in writing; and ii) Top-Teks accepts such cancellation in writing and is paid by Buyer (a) the sales value to Top-Teks of that part of the goods completed and work done in connection with the order; (b) the sales value of any items or materials bought by Top-Teks which cannot reasonably be used elsewhere by Top-Teks and (c) any other costs and liabilities which Top-Teks incurs by reason of Buyer’s cancellation.
15.2 Any extra cost or liability incurred by Top-Teks due to suspension of work or of deliveries or lack of or mistaken instructions from Buyer or to any interruptions or delays attributable to Buyer shall be added to the price of the goods and/or services and paid for by Buyer.
No failure or delay by Top-Teks in exercising any of its rights under these Terms and Conditions shall operate as a waiver thereof nor shall any single defective or partial exercise thereof preclude any other or further exercise of that or any other right.
17. Proper Law
These Terms and Conditions shall be subject to and construed under English Law. If any provision is declared void or unenforceable by a court of competent jurisdiction with respect to particular circumstances, such provision shall remain in full force and effect in all other circumstances. If any provision is declared entirely void or unenforceable by a court of competent jurisdiction all other provisions of these Terms and Conditions shall remain in full force and effect.