Terms & Conditions of Sale
You should understand that by using this website you agree to the following terms and conditions.
Your contract is with Power Gems Corporation, of 7702-1 Balboa Boulevard, Van Nuys, California 91406, USA.
1) Basis for Contract
Any order made by the Buyer constitutes an offer to purchase the Goods in accordance with these Conditions. An order shall only be deemed to be accepted when the Company issues a written acceptance of the order, at which point the contract shall come into existence (“the Contract”). The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Company which is not set out in the Contract.
a) All prices quoted are based on the cost of the constituent element of manufacturing the goods (including materials and utilities, wages and currency movements) ruling at the date of quotation.
b) If any specification or any such costs vary between that date and the date of delivery, the price of the goods may be increased by the Company to provide for such variations with prior notice.
c) Unless otherwise stated, the prices quoted are exclusive of sales tax which will be charged at the rate and in the manner prescribed by law.
d) All prices are ex works unless otherwise stated. Carriage by whatever method will be at the Company’s option be charged to the Buyer plus any cost of packing.
e) A quotation must be accepted within thirty days from the quotation date and will lapse at the end of that time.
3) Schedule Orders
a) A schedule order shall constitute authority for the manufacture of the total goods in the schedule order when the schedule order has been accepted. The Buyer must take delivery of and pay for all goods specified in the schedule order.
b) Goods in a schedule order shall be delivered within twelve months from the date when the schedule order was accepted by the Company.
c) The minimum interval between the schedule delivery dates and the minimum notice for change in delivery requirements shall be eight weeks.
d) The Buyer shall at all times be liable to pay the Company all costs and losses incurred by the Company in respect of current scheduled total stocks, work in progress, special materials and manufacturing tools.
4) Invoicing and Payment
a) The Company shall invoice the Buyer on the date on which the goods are despatched. If the Company agrees at the request of the Buyer to defer delivery of any goods or suspends delivery of any goods in accordance with condition 4g) or extends the delivery in accordance with condition 5b), the Company will be entitled to invoice the Buyer for such goods on the date on which they would otherwise have been due for despatch.
b) Charges for any bespoke goods including design artwork and tooling charges, may be invoiced by the Company at the time of shipment of the first prototype. Minor component or layout changes, not affecting cost, may at the Company’s discretion be accepted without extra charge, provided notification is received in writing before the design starts or within three working days of receipt by the Company of the Buyers order, whichever is the earlier.
c) The Company reserves the right to invoice any additional design tooling or prototype manufacturing charges arising from changes in the Buyers requirements at the time of shipment of the first prototype.
d) Unless the Company notifies the Buyer in writing, payment is due 30 days from the date of the invoice.
e) Payment is made and received only at the time when cash is handed to a duly authorised representative of the Company who issues a written receipt or when any cheque or draft sent or delivered to the Company is cleared and the Company’s bank account is credited with the proceeds, and not at any earlier time.
f) Clause removed.
g) The Company reserves the right to charge interest at the rate of 3% per annum above HSBC Bank base rate for the time being on all overdue accounts from the due date until the date of the actual payment.
h) Failure to make payment on the due date shall constitute a breach of contract and (without prejudice to any other rights which it might have), the Company may: suspend all further deliveries of goods under all existing contracts between the Company and the Buyer until payment of all sums has been made in full; and/or terminate the contract; and/or at any time after the price for the Goods has become due and remains unpaid, recover any goods which are still the property of the Company. By entering into this contract the Buyer hereby grants to the Company’s servants and agents irrevocable, unconditional licence to enter into any premises of the Buyer for the purpose of recovering such goods.
The Company reserves the right to withhold shipment of Goods in the event that the Buyer reaches or exceeds any agreed credit limits.
5) Manufacturing Specifications
a) If manufacturing tolerances or type of finish or materials to be used are not clearly defined in any specification or drawing supplied by the Buyer, the Company will manufacture to a reasonable level of tolerance and finish with such materials as is reasonable, subject to the provisions of 5b).
b) Any Buyer specifications must be supplied to the Company within fourteen days of the Contract being entered into. Any delay will entitle the Company to defer delivery of the goods by a period equivalent to the delay.
c) Where any additional or changed information is submitted to the Company by the Buyer, the Company reserves the right to increase prices to cover any costs (including overheads) incurred by the Company, as a result of such alterations and/or to extend the delivery period.
d) Where the goods have been supplied to the Buyers specification, the Company accepts no liability for any failure or defect in such goods. The Buyer shall indemnify and keep indemnified, whether or not the manufacturing tolerances or type of finish or materials used are clearly defined in any such specification or drawing the Company against all actions, claims, costs and proceedings, including claims that any specification drawing or goods infringe(s) any patent, registered design, copyright or other industrial intellectual property right of any third party. The Company gives no warranty as to the fitness for any particular purpose of goods so supplied to the Buyers own specification and accepts no liability for clerical or stenographical errors on any drawings or specifications provided by the Buyer.
a) Although the Company will make every effort to deliver or procure the delivery on the agreed date, time for delivery is not of the essence of the contract. Any quoted delivery date or period is a business estimate only and is conditional on the Buyer, at the time of placing the order, providing the Company with such information concerning the Buyers requirements as enables the Company to fulfil the order. The Company shall not be liable for any loss or damage whatsoever caused by delayed delivery of goods.
b) Charges will be made for journeys undertaken on the Buyers instructions which prove to be abortive.
c) Goods will be deemed to be delivered within seven days after the date of invoice, unless prior to the expiry of such seven days, the Buyer notifies the Company and any carrier in writing of nondelivery.
d) The Buyer must notify the Company by telephone of any short delivery or loss or damage to goods in transit immediately upon delivery of the goods save also in the circumstances set out in condition 7 and must confirm the same in writing within seventy two hours thereafter; the Buyer shall at the same time notify any carrier in writing of any such loss or damage and shall enter a note of the same on the carriers receipt. If the Buyer fails to give notice as provided above and the Company is precluded from making recovery whether from any insurer or third party in respect of the loss or damage complained of, then the Buyer shall be liable to pay for the goods as though no such loss or damage have occurred.
e) If any carrier for any consignment of goods receives an unqualified receipt therefore by or on behalf of the Buyer, the Company shall have no liability to the Buyer for loss of or damage in transit to such goods or for miss-delivery or non-delivery thereof.
7) Failure to take Delivery
a) If goods are ready for delivery and the Buyer fails to take delivery at the time required by the contract the Company shall be entitled:
to invoice the Buyer in respect of such goods forthwith; and
to arrange at the Buyers expense for the handling and storage of such goods and for their insurance, from the date of invoice to the date when the Buyer takes delivery of or the Company disposes of the same and risk in the goods shall pass to the Buyer forthwith.
b) If the Buyer fails to take delivery within thirty days of the date of the relevant invoice it shall be deemed to have repudiated the contract and without prejudice to any other right which it may have against the Buyer, the Company shall be entitled to resell the goods forthwith.
8) Warranty against Defects
All goods sold by the Company are warranted to be free from any material defect in workmanship and material for a period of twelve months from the date of delivery actual or deemed provided:
a) The Company is given full particulars in writing of any claim prior to the expiration of such a period and within fourteen days of the discovery of the alleged defect.
b) The goods have been stored, installed, maintained and used properly having regard in particular to the Company’s instructions.
c) Liability shall be limited at the Company’s option to replacement or repair and in any event shall not exceed the net invoice value of the defective goods, and shall further be subject to condition 12.
d) The warranty contained in condition 8 does not apply to and the Company accepts no responsibility for:
damage occurring in transit
goods which have suffered or been subject to undue wear and tear, accident, misuse, improper application, neglect or overloading.
e) Upon request the alleged faulty goods shall be returned to the Company at the Buyers expense.
f) All component parts not manufactured by the Company but embodied in any equipment sold by the Company shall carry the warranty of the manufacturers and the Company will do its best to assist the Buyers in enforcing any such warranty should a claim arise. The Company cannot itself entertain any liability in respect of parts of equipment not manufactured by the Company.
g) Except as provided in this clause 8, the Company shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in clause 8.
9) Retention of Title
a) All title to the goods supplied under the contract will not pass to the Buyer until the Price for the Goods has been paid in full. Prior to title passing to the Buyer, the Buyer must store the Goods separately from all other materials held at its premises and labelled with the Company’s identifiable logo so that they are identifiable as the property of the Company.
b) Notwithstanding the provision of condition 9a) above, the Buyer shall be entitled to dispose of the goods for the account of the Company (but so that any warranties, conditions or representations given or made by the Buyer to his customer shall not bind the Company which shall be indemnified by the Buyer in respect thereof) and to pass good title to the goods to any customer which is a bona fide purchaser for value without notice of the Company’s rights.
c) Without prejudice to any of the Company’s other rights (whether to damages or under contract or otherwise howsoever) the Company may at any time after the price for the Goods has become due and remains unpaid, recover any goods which are still the property of the Company. By entering into this contract the Buyer hereby grants to the Company’s servants and agents irrevocable, unconditional licence to enter into any premises of the Buyer for the purpose of recovering such goods.
a) Risk in the goods shall pass to the Buyer on delivery of the Goods.
b) The Buyer shall keep the goods fully insured against the usual risks or as set out in condition 7 including without limitation fire, theft, flood & terrorist attack from delivery.
11) Company’s Remedies
If the Buyer shall make default in any material respect of its obligations to the Company (including failure to make payment), or if any distress or execution shall be levied upon the Buyers property or assets, or if the Buyer shall make or offer any arrangement or composition with its creditors or if there shall be any other grounds upon which the Buyer shall become insolvent or any resolution or petition to wind up the Buyer or for the appointment of an administrator of the Buyer shall be passed or represented by the Company (Without prejudice to any other right to which it may be entitled):- Then the Company may:
a) suspend or terminate the contract or any unfulfilled part thereof (without prejudice to its existing rights thereunder);
b) stop any goods in transit.
c) recover from the Buyers premises any goods which remain the property of the Company; and
d) shall be entitled to claim against the Buyer for any loss or damage sustained as a result of such suspension or termination
12) Consequential Loss
Except as otherwise expressly provided in these conditions the Company shall be under no liability in respect of the quality, condition or description of goods or for loss or damage including consequential loss of damage howsoever caused to the Buyer or to any other person. Notwithstanding anything to the contrary in these conditions, nothing in these conditions shall exclude, restrict or limit the Company liability for death or personal injury resulting from the Company’s negligence.
13) Indemnity by Buyer
The Buyer shall indemnify the Company against all liabilities costs and expenses which the Company may incur by reason of any claim by any subsequent purchaser or user of the goods or of any product incorporating the goods or manufactured by using the goods or by reason of any claim by any relative or dependant of such purchaser or user arising from any defect or alleged defect in the goods or in such product except and to the extent that such liabilities, costs and expenses arise from a branch by the Company of its obligation under these conditions.
14) Returned Goods
a) No contract for goods may be cancelled by the Buyer and save as otherwise provided in these conditions no goods may be returned without prior written consent of the Company.
b) If the Company agrees to accept return of any such goods the Buyer shall be obliged to effect the return of such goods in good condition and at its own risk and cost.
15) Health and Safety
a) The Company has available up to date information and/or product literature concerning the conditions necessary to ensure that the goods supplied will be safe and without risk to health when properly used. This information is and will remain available upon request from the Company.
b) The Buyer shall be solely responsible for and shall keep the Company indemnified against any loss, liability or expenses arising directly or indirectly from use of the goods other than in accordance with their specification or the Company’s operating instructions or the information and product literature referred to in condition 15a) (where no such specifications or instructions exist) in a manner which could not reasonably be considered to be safe without risk.
16) Export only
To enable the Company to export, before any despatch the Buyer shall furnish all necessary documentation and information for export and import authorisations and the Buyer shall be responsible for obtaining import authorisations
Except as otherwise expressly agreed in writing, all specifications, patterns, drawings, schematics, tools produced by the Company and all intellectual property rights, including but not limited to copyright and any design rights in these documents, shall remain in the property of the Company. The Buyer may not utilise, reproduce or communicate knowledge of such items and the Buyer shall return the same to the Company at the Company’s request.
18) Right to Subcontract
The Company reserves the right to sub contract fulfilment of any order or contract or any part thereof.
19) Force Majeure
The Company shall not be liable for failure to comply with any of its obligations under the contract in the event that compliance is delayed or prevented by any cause whatsoever beyond its reasonable control, including but not limited to, war, riot, strike, lock out, Act of God, storm, fire, earthquake, flood, confiscation, action of any Government agency, or shortage.
20) Right of the Company
No forbearance or indulgence by the Company shown or granted to the Buyer in respect of the terms and conditions of sale of the goods shall affect or prejudice the rights of the Company against the Buyer.
21) Set Off
The Buyer shall not be entitled to the benefit of any set off which the Buyer might otherwise be entitled in law or equity. All sums payable under this contract will be payable without any reductions and the Company shall be entitled in the event of non-payment to obtain and enforce judgement without any stay of execution pending the determination of any cross or counter claims by the Buyer.
22) Effect of Invalid Provisions
If any provision of the contract is held to be invalid, illegal or unenforceable in any way, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired in any way.
Headings are inserted for convenience only and shall not affect the meaning of construction of these conditions.
24) Governing Law and Jurisdiction
These conditions and the contract shall be subject to and construed in accordance with the laws of the State of California.
Except as set out in these conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is in writing and signed by the Company.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, information about the business, proposals, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party). The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract or as is required to be disclosed by law. This clause 26 shall survive termination of the Contract.