Terms & Conditions
1.1 In these Conditions:
“Buyer” means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller.
“Goods” means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions and any goods supplied in substitution for or in replacement of or in addition to such goods. “Seller” means ACTIVE GEAR SA.
“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
“Contract” means the contract for the purchase and sale of the Goods.
“Writing” includes letter, cable, facsimile transmission, email and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall
be construed as a reference to that provision as amended, re-enacted or
extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance
with any written quotation of the Seller which is accepted by the Buyer, or any
written order of the Buyer which is accepted by the Seller, subject in either
case to these Conditions which shall govern the Contract to the exclusion of
any other terms and conditions subject to which any such quotation is accepted
or purported to be accepted, or any such order is made or purported to be made,
by the Buyer.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
2.3 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.4 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller
3. Orders and specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed by the Seller’s authorised representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer the Buyer shall indemnify the Seller against all loss damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim of infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
3.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.6 A 14 day cooling off period will be allowed during which cancellations or reducing the order will be accepted by the seller if the Buyer indemnify the Seller in full against all costs (including the cost of all labour, goods transportation and materials used), damages, charges and expenses incurred by the Seller as a result of any cancellation. Goods return is only accepted after we give you our written consentment and at the buyer expenses. The goods have to be return in perfect conditions in their original packaging.
3.7 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and the Buyer shall indemnify the Seller in full against all loss (including loss of profit) costs (including the cost of all labour, goods transportation and materials used), damages, charges and expenses incurred by the Seller as a result of any cancellation.
4. Price of the goods
4.1 The price of the Goods shall be the Seller’s quoted price or the price listed in the Seller’s published price list current at the date of acceptance of the order.
4.2 The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture)or to any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller are exclusive of carriage charges.
4.4 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, the price is exclusive of any applicable value added tax that the Buyer shall be additionally liable to pay to the Seller.
5. Terms of payment
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller the Seller shall be entitled to invoice the Buyer for the price of the Goods at any time before or after delivery of the Goods.
5.2 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all Invoices are payable immediatly at the time of order.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to.
5.3.1 cancel the contract or suspend any further
deliveries to the Buyer;
5.3.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer) and
5.3.3 charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of 4 per cent per annum above EURIBOR 3M EUR base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
5.4 In the event that the Seller shall cancel the
contract under the provisions of Clause 5.3.1 above the Buyer shall indemnify
the Seller in full against all loss (including loss of profit), costs
(including the cost of all labour, goods transportation and materials
used), damages, charges and expenses incurred by the Seller as a result of such
cancellation. Without prejudice to the generality of the foregoing, at the
option of the Seller, the Seller shall be entitled to require the Buyer to pay
to the Seller by way of liquidated damages an amount equivalent to 50% of the
invoice value of the contract so cancelled. In the event of the Seller so
requiring, the Buyer shall pay such amount to the Seller (without any
deduction) within seven days of receiving from the Seller written notification
of the amount required to be paid. The Seller and the Buyer hereby agree that
such amount represents a genuine pre-estimate of the monetary value of the loss
and damage likely to be suffered by the Seller as a result of such cancellation.
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer. The Seller shall be entitled to make part delivery of the Goods at any time.
6.3 Where the Goods are delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If the Seller fails to deliver the Goods for any reason, if requested in written by the Buyer, the Seller’s liability shall be limited to the reimbursement of the amount related order the excess but should not pay any penalties.
6.5 If the Buyer fails to take delivery of the Goods or fails to give adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1 store the Goods until actual delivery and
charge the Buyer for the reasonable costs (including insurance) of storage; or
6.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
6.6 Except as otherwise agreed in writing between the Buyer and the Seller. If any problem happen during the delivery, the customer can only ask to be compensated by the transportation company. The Seller will not be responsible for any damage caused during transportation.
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 in the case of Goods to be delivered at the
Seller’s premises, at the time when the Seller notifies the Buyer that the
Goods are available for collection: or
7.1.2 in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivered of the Goods
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and payment in full of all sums due from the Buyer to the Seller whether under the Contract or by virtue of any other liability of the Buyer to the Seller.
7. 3 For the avoidance of doubt, nothing contained in this Clause 7 shall entitle the Buyer to return any of the Goods to the Seller save as expressly provided in these terms and conditions or as expressly agreed in writing between the Seller and the Buyer.
Warranties and liability
8.1 Subject to the conditions set out below the
Seller warrants that the Goods will correspond with their specification subject
to such tolerances as are reasonable and as are normally accepted in the trade
and will be free from defects in material and workmanship at the time of
8.2 The above warranty is given by the Seller subject to the following conditions:
8.2.1 the Seller shall be under no liability in
respect of any defect in the Goods arising from any drawing, design or
specification supplied by the Buyer:
8.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alternation or repair of the Goods without the Seller’s approval.
8.2.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
8.2.4 the above warranty does not extend to Goods not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
8.3 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 30 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered In accordance with the Contract.
8.4 Any claim by the Buyer which is based on short delivery or non-delivery shall be notified to the Seller in Writing (in the case of short delivery) within 14 days of delivery and (in the case of non-delivery) within 30 days of receipt by the Buyer of the Seller’s Invoice for the goods which the Buyer claims have not been delivered. If the Buyer does not notify the Seller accordingly the Buyer shall not be entitled to reject any goods that have been delivered and the Seller shall have no liability for such short delivery or non-delivery.
8.5 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions the Seller shall be entitled to replace the Goods or (refund to the Buyer the price of the Goods) (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.6 The Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever(and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions.
8.7 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
8.7.1 Act of God, explosion, flood, tempest, fire
8.7.2 war or threat of war, sabotage, insurrection, civil disturbance, or requisition;
8.7.3 acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.7.4 import or export regulations or embargoes;
8.7.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.7.6 difficulties in obtaining raw materials labour, fuel, parts or machinery;
8.7.7 power failure or breakdown in machinery.
Insolvency of buyer
9.1 This clause applies if:
9.1.1 the Buyer makes any voluntary arrangement
with its creditors or becomes subject to an administration order or (being an
individual or firm) becomes bankrupt or (being a company) goes into liquidation
(otherwise than for the purposes of amalgamation or reconstruction); or
9.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
9.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
9.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
9.2 If this clause applies, then, without prejudice
to any other right or remedy available to the Seller, the Seller shall be
entitled to cancel the Contract or suspend any further deliveries under the
Contract without any liability to the Buyer, and if the Goods have been
delivered, but not paid for, the price shall become immediately due and payable
notwithstanding any previous agreement or arrangement to the contrary.
10.1 In these Conditions ‘Incoterms’ means the
international rules for the interpretation of trade terms of the International
Chamber of Commerce as in force at the date when the Contract is made. Unless
the context otherwise requires, any term or expression which is defined in or
given a particular meaning by the provisions of Incoterms shall have the same
meaning in these Conditions, but if there is any conflict between the
provisions of Incoterms and theses Conditions, the latter shall prevail.
10.2 Where the Goods are supplied from the Seller, the provisions of this clause 10 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply, notwithstanding any other provisions of these conditions.
10.3 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and notifying to the Seller the requirements of any such legislation or regulations requiring action on the part of the Seller and for the payment of any duties in connection with the Goods.
10.4 Unless otherwise agreed in Writing between the Buyer and the Seller the Goods shall be delivered FOB from the air or sea port of shipment and the Seller shall be under no obligation to give notice.
10.5 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of damage during transit.
10.6 Payment of all amounts due to the Seller shall be made in such manner as shall be agreed between the Seller and the Buyer in Writing.
11.1 We may transfer information about you to our
11.2 may use, analyse and assess information about you, including the nature of your transactions, and exchange such information with other members of their group of companies and others for credit or financial assessment, market research, statistical analysis, insurance claim, underwriting and training purposes and in making payments and servicing their agreement with us;
11.3 from time to time, may make searches of your record at credit reference agencies where your record with such agencies may include searches made and information given by other businesses; details of their searches will be kept by such agencies but will not be seen by other organisations that may make searches;
11.4 may give information about you and your indebtedness to the following:
11.4.1 our or their insurers for underwriting and
11.4.2 any guarantor or indemnifier of your or our obligations to enable them to assess such obligations;
11.4.3 their bankers or any advisers acting on their behalf;
11.4.4 any business to which your indebtedness or our arrangements with our financiers may be transferred – to facilitate such transfer;
11.5 may monitor and/or record any phone calls you
may have with them, for training and/or security purposes;
11.6 in the event that they transfer all or any of their rights and obligations under their agreement with us to a third party, may transfer information about you to enable the third part to enforce their rights or comply with the obligations.
11.7 We will provide you with details of our financiers on request, including a contact telephone number if you want to have details of the credit reference agencies and other third parties referred to above from whom they obtain and to whom they may give information about you. You also have a right to receive a copy of certain information they hold about you if you apply to them in writing, however, a fee will be payable.
12.1 Any notice required or permitted to be given
by either party to the other under these Conditions shall be in Writing
addressed to that other party at its registered office or principal place of
business or such other address as may at the relevant time have been notified
pursuant to this provision to the party given the notice
12.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
12.4 The contract shall be governed by the laws of Switzerland.