1.1 The present Terms of Sale and Delivery shall apply to all business relations of the Supplier (TMS Group), (Reg. HE 344291) with other companies (“The Buyer/s”). The Supplier and the Buyer/s shall be jointly referred to as “The Parties”. In particular, the Supplier shall provide all the services and supplies (“The Services”) to the Buyer exclusively on the basis of these General Terms of Sale and Delivery, whether expressly referring to them in a specific case or not.
1.2 At the latest by issuing its declaration of agreement with the Supplier, the Buyer irrevocably accepts these General Terms of Sale and Delivery. No General Terms of Business of the Buyer shall become part of the contract, irrespective of whether the Buyer refers to them and irrespective of the time of receipt of such Buyer’s Terms at the Supplier
2. Quotation & Acceptance of Order
2.1 All quotations of the Supplier are without obligation and subject to modification. Buyer’s orders not containing a deadline for acknowledgement shall bind the Buyer for at least four weeks.
2.2 Any contracts with the Supplier shall not become effective until written acceptance and acknowledgement of the order by the Supplier (“Order acknowledgement”).
2.3 Any deviations in the order acknowledgement shall be considered as accepted if the Buyer does not contradict the deviation in question expressly and in writing, within seven days from the receipt of the order acknowledgement.
3. Prices and terms of payment
3.1 In case of doubt, the prices serving as the basis of the Contract are to be read as, Ex works prices exclusive of packing, dispatch & the legal applicable taxes.
3.2 The Buyer shall be obliged to pay all invoices at the Supplier’s place of business within 30 days from the date of invoice and without deductions as per the amount noted in the Supplier’s offer/quote, unless otherwise agreed upon different payment terms.
3.3 Payment is deemed to be complete only when the entire amount stated in the Invoice or Pro-forma Invoice is credited to Sellers account without any deductions. All Bank charges are to be borne by the Buyer.
3.4 In the event of the Buyer failing to pay the purchase price or any other amount which is due, he shall – without prejudice to any damages claim – be obliged to pay the Supplier interest on the due amount at a rate of 2.5 % per month.
3.5 The Buyer shall not be entitled to refuse to make payment on the grounds of claims arising from actions or omissions on the part of the Supplier where such claims have not been recognised by the Supplier. The Buyer shall also not be entitled to offset any counterclaims against the amount of his payment towards the supplier unless this latter has expressly recognized such claims in writing.
4.1 Any delivery date specified in the Confirmation of Order/Acknowledgment of Order or otherwise shall be deemed an estimate only, and the Supplier shall not be liable for any loss, damage or expense whatsoever however caused or arising out of any delay in delivery.
4.2 The Buyer shall not be entitled to refuse to accept the Goods because of late delivery.
4.3 Where delivery is made by instalment each such instalment shall be deemed to be the subject of a separate Contract.
4.4 In case of any short or wrong delivery, the Buyer has to notify the Supplier within 5 (five) working days on receipt of material, failing which the Buyer shall be deemed to have accepted the quantity & quality of parts delivered.
4.5 Count down of the delivery time starts upon TMS Group Order Acknowledgement.
4.6 Packing and Handling charges are not included in the Supplier’s offer or Order Acknowledgement. Supplier will provide an estimation of the Packing and Handling charges upon Order Readiness to the Buyer, unless otherwise specified in the Supplier’s offer.
5. Passing of Risk and Property in the Goods
5.1 Where delivery is delayed at the request of the Buyer for more than one month, the Supplier shall be entitled to place the Goods in store at the Buyer’s risk and expense.
5.2 The property in the Goods shall not pass to the Buyer whether or not the Buyer has taken delivery of the Goods or any part thereof until the Buyer shall have paid to the Supplier the whole of all sums due to the Supplier here under.
6.1 While the Supplier has taken care to ensure the accuracy of any information data or advice included in any catalogue or other literature furnished to the Buyer, the Supplier accepts no liability in respect of such information, data or advice, whether given negligently or not and the Buyer shall at the time the Contract is made be deemed to have carried out its own investigations and tests of the Goods.
6.2 Subject to the foregoing the Buyer shall inspect the Goods immediately upon arrival at its premises and shall within fourteen days of their arrival notify the Supplier of any damage, shortage, loss or other particulars by reason of which it alleges that the Goods supplied do not conform with the Contract. If no such notice is received the Goods shall be deemed to have been supplied in accordance with the Contract and to have been accepted by the Buyer.
6.3 Where the Buyer gives notice to The Supplier by virtue of sub-clause 6.2 it shall preserve the Goods intact and as delivered for a period of thirty days after receipt by the Supplier of the notification, during which period the Supplier’s agents or employees shall be at liberty to attend the Buyer’s premises to investigate the complaint.
6.4 If the Buyer fails to comply with either of sub-conditions 6.2 or 6.3 it shall be deemed to have waived all or any claim actions or rights or remedies it may have in respect of the nonconformity of the Goods to the Contract.
6.5 If upon inspection by the Supplier, the Goods are found to be damaged, short or otherwise not in conformity with the Contract, the Supplier shall in its absolute discretion at its own expense replace or otherwise make good the same.
6.6 Damage, shortage, loss or other non-conformity with the Contract which is present only in a proportion of the Goods shall entitle the Buyer to the remedies given by this Condition only in respect of that proportion or instalment.
6.7 The Supplier does not have any obligation to re-supply any goods/spares and other liabilities in case of defects caused by accidental damage, improper use, abuse, negligence, bad installation (including, but not limited to, errors about parameter configuration in case of connection to the electricity grid) and incorrect use on board from the side of the Buyer’s technicians and/or manpower.
6.8 In case the Buyer undertakes the transportation of the goods from the Supplier’s Warehouse via his own forwarder or agent, the supplier will not be responsible or have any obligations where a damage or defects to the goods occur.
6.9 Any claim made by the Buyer must be sent to the Supplier within a period of 14 days from the receival of goods (arrival notice) along with an official report which will include photos and supporting evidence related to the claimed damage.
7. Force Majeure
In the event of: war, riots, civil unrest, government intervention or intervention by the public authorities, fire, strikes, lockouts, export- and/or import bans, mobilisation, vandalism, currency restrictions, epidemic, computer virus, hacking, natural disasters, extreme weather conditions, labour shortages, energy and water supplies, perils of the sea, breakdown in machinery, shortages of raw material or fuel or labour, or sub-contractors of the Supplier or any other unforeseen or exceptional circumstances whatsoever affecting the performance of the Contract, the Supplier may in its discretion either:
(i)Terminate the Contract and return any advance payment made in respect thereof of the Buyer;
(ii) Delay delivery for such period or periods as it shall consider necessary and in either case the Buyer shall have no claims whatsoever howsoever arising against the Supplier in respect of such termination or delay.
8.1 Any drawings or technical documents intended for use in manufacture or construction of the Goods and submitted to the Buyer prior or subsequent to the formation of the Contract remain The Supplier’s exclusive property. Such drawings or technical documents may not without the Supplier’s consent be utilised by the Buyer or copied, reproduced, transmitted or communicated to a third party. The said drawings and documents shall become property of the Buyer only if it is expressly so agreed in writing by the Supplier.
8.2. In the event that an Order or Contract is not proceeded with for any reason whatever, each party shall upon demand return to the other all such materials is referred to in the preceding sub-clause and undertake to destroy any copies thereof which may have been made by it.
9. Jurisdiction and Choice of Law
Any dispute between TMS Group and the Buyer shall be resolved according to the English Law. However, this choice of law shall exclude the rules on international civil law under English Law.