Terms & Condition

THESE TERMS AND CONDITIONS OF SALE APPLY WHENEVER PRODUCTS ARE SOLD TO A CUSTOMER IN THE AMERICAS.

Standard Terms and Conditions

The following Standard Terms and Conditions (“Agreement”) apply to any and all procurement by Buyer of all makes and models of equipment, parts and components for such equipment (“Equipment”) and repair services, refurbishment or warranty work or other services  (“Services”) described in an invoice, lease, proposal, quote, purchase order acknowledgment, sales acknowledgement, drawing, exceptions document or other instrument to which this Agreement is attached or to which reference is made or to any purchase order, transactional document or any other communication between the parties regardless of whether this Agreement is referenced therein. Equipment and Services shall be collectively referred to as “Products”. Seller objects to and shall not be bound by any additional or different terms, whether printed or otherwise, in any purchase order or other communication from Buyer to Seller, unless specifically agreed to in a single writing signed by the Parties hereto.  This Agreement constitutes the entire, integrated agreement between the Parties related to the subject matter of this Agreement and any and all discussions, understandings, agreements, representations, courses of dealings, customs, and usages of trade heretofore made or engaged in by the Parties with respect to the subject matter hereof are merged into this Agreement, which alone fully and completely expresses the Parties’ agreement.  Seller will not be liable to Buyer, for representations and warranties made by Seller’s distributors and sales agents which are inconsistent or in conflict with this Agreement.

  1. Definitions. “Seller” means BAND-IT and any of its affiliates.

“Buyer” or “Buyers” means, as applicable, the purchaser or lessee of Products.

  1. Terms of Sale.
    1. The Equipment shall transfer by Seller to the Buyer per FCA Shipping Point or as otherwise set forth in the applicable quotation (“Quote”), at which point title and all risk of loss or damage to Equipment will pass to Buyer. 
    2. Buyer shall conduct an inspection of the Products promptly upon delivery and shall promptly notify Seller in writing of any defects.     If Buyer fails to promptly notify Seller of any defects, whether or not any such inspection and acceptance has been performed by Buyer, the Products shall be considered accepted.   Buyer’s sole and exclusive remedy for rejection of Equipment is as set forth in Section 3 (Product Warranty).
  1. Product Warranty. All technical support installation, product warranty, and post warranty services are provided only at the original installed location. Product warranty is NONTRANSFERABLE from one location to another, except with the prior written consent of Seller.
    1. Seller warrants that for a period of one (1) year following shipment the Equipment will: (i) be free from defects in materials and workmanship; and (ii) conform to the specifications agreed to by the Parties in writing. Seller warrants that Services will be performed in a workmanlike manner and such warranty shall be limited to a period of ninety (90) days from date of service (other than warranty services and services performed gratis). Buyer’s sole and exclusive remedy for any breach of warranty related to Equipment  will be limited to, at Seller’s option, replacement, repair or refund of the purchase price of the Equipment  that does not conform with the warranties,  provided that Buyer notifies Seller of such defect in writing within ten (10) days after Buyer knows or has reason to know thereof, and provided further that inspection of the Equipment  by Seller discloses that the defect developed under normal and proper use of the Equipment.  Wear parts including, but not limited to, knives, blades, grippers are not warranted.

This warranty will not apply to Equipment that: (i) is damaged due to misuse, abuse, negligence or accident occurring during or after shipment; (ii) is changed or modified (unless the change or modification is made by or in accordance with written instructions of Seller); (iii) deteriorates due to erosion, abrasions or chemical action; (iv) fails due to improper installation (except for installation provided or supervised by Seller), operation or maintenance; (v) fails due to any non-Seller equipment, or system with which  Equipment  is used; or (vi) Buyer operates in any manner other than in accordance with Seller’s manual, guidelines, operating instructions or other material.

  1. Equipment will not be returned to Seller without Seller’s written permission. Provision of a replacement part or component will not operate to extend the warranty period for any Equipment.  Seller reserves the right to inspect Equipment that is subject to warranty claims and to require the return of such Equipment that is subject to warranty claims to Seller’s Warehouse at Buyer’s expense; provided, however, that it is determined that the issue with returned Equipment is covered by warranty, Seller will reimburse Buyer for freight charges associated with the return of such Equipment to Seller’s Warehouse.  Seller also reserves the right to use reconditioned parts and components for warranty replacements.
  2. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF, AND SELLER DISCLAIMS AND BUYER WAIVES, ALL OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND OF ANY OTHER TYPE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW (STATUTORY OR OTHERWISE) AND WHETHER OR NOT OCCASIONED BY SELLER’S NEGLIGENCE.
  1. Limitation of Liability. SELLER WILL NOT BE LIABLE TO BUYER, FOR SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, DOWNTIME, LOSS OF BUSINESS AND FROM ANY CLAIM, ACTION OR CAUSE WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE MANUFACTURE, SALE, HANDLING, REPAIR, REPLACEMENT OR USE OF PRODUCTS.   

IN NO EVENT WILL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE PURCHASE PRICE OF THE PRODUCTS GIVING RISE TO THE CLAIM, EVEN IF SELLER IS ADVISED OR PLACED ON NOTICE OF THE POSSIBILITY OF SUCH PENALTIES OR DAMAGES AND NOTWITHSTANDING THE FAILURE OF AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

In no event shall Seller be liable for late delivery or other penalties.

  1. Intellectual Property. All patent, technology, copyright, trade secret or other similar proprietary or intellectual property rights in or related to the design, production, delivery, operation, use, application or performance of Products, or other Confidential Information of Seller, and all improvements thereto, are and will remain the sole and exclusive property of Seller.

In no event may Buyer make a patent or other claim to Seller’s Products and/or Seller’s technology or processes or include or reference any Confidential Information of Seller in any patent or other claim.  Nothing in this Section 5 precludes Buyer from incorporating a description or reference to Seller’s Products and/or non-confidential aspects of Seller’s technology or processes where necessary to support a patent or other claim to Buyer’s product, provided, however, that no use of Seller’s name, trademarks or logos may be made without Seller’s prior written consent. Nothing in this Agreement will be construed as granting to Buyer any license or grant of intellectual property rights with regards to the Products’ or its processes.

  1. Seller Indemnity.  Seller shall defend, indemnify and hold harmless Buyer against third party claims for personal injury or tangible property damage to the extent caused by a defect in any Equipment. Seller’s obligations to Buyer hereunder shall be subject to and conditioned upon Buyer giving Seller written notice of such claim (including all known material facts related thereto) within ten (10) days after it is asserted against Buyer (provided that the failure to give Seller written notice of a claim as provided herein shall relieve Seller from its obligations hereunder only if and to the extent Seller is prejudiced thereby) and Buyer granting Seller exclusive direction and control of the investigation, defense and settlement of such claim, including, but not limited to, selection of legal counsel to represent Buyer at Seller’s expense. 

 

  1. Equipment Changes.  Seller reserves the right, in its sole discretion and without prior notice, to make changes to Equipment at any time that do not materially affect form, fit or function.
  1. Buyer Requested Change, Delay or Cancellation; Liquidated Damages.
    1.     If Buyer requests a change to Equipment, Seller may impose additional equitable charges. 
    2.     If shipment of the Equipment is delayed or rescheduled for greater than ten (10) days after the confirmed ship date due to Buyer’s fault, then upon the expiration of such ten (10) day period, Buyer shall pay to Seller, a storage and handling fee equal to one tenth of one percent (0.10%) per day of the purchase order value for each day the shipment is delayed, with a maximum storage and handling fee of ten percent (10.0%) of the purchase order value. The parties agree that such amounts are a reasonable pre-estimate of the damages Seller will suffer as a result of delay based on circumstances existing at the time the purchase order was issued and are to be assessed as liquidated damages and not as a penalty.
    3.     If pursuant to the terms of the purchase order, Buyer has elected to use a freight forwarder and/or carrier selected by Buyer, and shipment of the Equipment  does not take place on or prior to the confirmed ship date as a result of Buyer’s failure to arrange for Buyer’s freight forwarder and/or carrier to take delivery of the Equipment on the confirmed ship date, then, upon five (5) business days’ notice to Buyer (which may be by email), (i) Seller shall be entitled to ship the Equipment to Buyer using a freight forwarder selected by Seller [FCA Shipping Point] freight prepaid and billed” and invoice Buyer for such charges; and (ii) Buyer shall pay to Seller such invoiced charges net thirty (30) days after date of invoice.  If Seller exercises its rights under this paragraph, title and risk of loss shall pass to Buyer in accordance with the Incoterm as specified in the Quote.
  2. Confidential Information.  For purposes of this Agreement, “Confidential Information” shall include all information furnished under this Agreement which is designated as confidential or proprietary, or which the receiving party knows or should know is being disclosed on a confidential basis, including without limitation pricing information, proposals, prints, drawings and all information in or related to the design, development, production, delivery, operation, use, application or performance of any of a party’s technology, equipment, parts, or maintenance/services. Confidential Information does not include information which: (a) is known or independently developed by the receiving party prior to its disclosure by the other party, as evidenced by receiving party’s records; (b)  becomes a part of the public domain without breach of this Agreement by the receiving party; (c) is received from a third party without restriction and under conditions permitting its disclosure to others; or (d) which is disclosed pursuant to judicial action or government regulations provided the receiving party notifies the disclosing party prior to such disclosure, and cooperates with the disclosing party in the event it elects to legally contest and avoid such disclosure.

For a period of five (5) years from the date of receipt, Confidential Information shall be maintained in confidence by the receiving party, shall not be disclosed to any third party, other than Seller’s suppliers who have a reason to know, without prior written approval of the disclosing party, and shall be protected with the same degree of care as the receiving party normally uses in the protection of its own confidential and proprietary information, but in no case with any less degree than reasonable care.  Notwithstanding the foregoing, the Parties’ obligation to protect trade secrets is perpetual or for so long as such information remains a trade secret under applicable law, whichever occurs first.

  1. Force Majeure. Seller is not liable for any failure to perform its obligations under this Agreement resulting directly or indirectly from or contributed to by, acts of God, acts of civil or military authorities, riots or civil disobedience, terrorism, wars, strikes or labor disputes, accidents, floods, fires, or inability to secure material or transportation facilities, dissolution of a supplier’s business, acts or omissions of carriers, or any other circumstance beyond Seller’s reasonable control; provided, however, that, Buyer agrees to take delivery and make payment for finished Equipment  or component as of the date of the Force Majeure event.  
  2. Waiver. No failure or delay by either party to insist upon strict performance of any rights or powers under this Agreement shall operate as a waiver thereof, nor shall any other single or partial exercise of such right or power preclude any other further exercise of any rights or remedies provided by law, unless agreed to by that party in writing. Any waiver of this Agreement shall not operate or be construed as a waiver of any subsequent breach by either party.
  3. Assignment. This Agreement may not be transferred or assigned by Buyer without the prior written consent of Seller.  Seller may assign its rights and obligations under this Agreement in whole or in part to an affiliate company or third party acquirer in the event of a merger, acquisition or sale of all or substantially all its assets.
  4. Specific Performance.  Buyer agrees that monetary damages may not be sufficient to remedy a breach hereunder and that Seller shall be entitled to seek specific performance and injunctive or other equitable relief.
  5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this contract shall remain in effect.
  6. Export/Import.  Buyer shall be solely responsible for obtaining all approvals, authorizations licenses and permits, unless otherwise specified under the applicable Incoterms agreed to by the parties.  Buyer shall comply with all laws, rules and regulations, and making all arrangements related to the export or import of Equipment supplied by Seller.  Equipment and related technical information, data, documents and materials are subject to export controls under U.S. Export Administration Regulations and U.S. Department of the Treasury embargo regulations and other applicable laws.  Buyer shall strictly comply with all such export controls, shall fully cooperate with Seller in any official or unofficial investigation, audit or inspection that relates to any of such controls, and shall not export, re-export, divert or transfer, directly or indirectly, any Equipment  or related technical information, data, documents or materials to any party or destination or for any use that is subject to an embargo or otherwise prohibited pursuant to such controls, unless and until Buyer obtains all required governmental and regulatory approvals, authorizations, licenses and permits.
  7. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of Delaware if Seller is an entity formed in the U.S. and the Province of Ontario if the Seller is a Canadian legal entity, without regard to its conflict of law provisions and shall not be governed by the U.N. Convention on the International Sale of Goods.
  8. Payment.  Quoted prices exclude taxes, freight and insurance and any duties and brokerage charges, all of which shall be the sole liability and responsibility of Buyer.  If Buyer claims an exemption from any tax, a valid and proper tax exemption certificate must accompany order.  Unless otherwise set forth in Seller’s invoice, proposal, lease, or purchase order acknowledgment, all payments shall be made in the currency specified in the Quote.

Any deposit or graduated payment schedule shall be set forth in the Quote and invoiced accordingly. If not addressed in the Quote, Equipment will be invoiced upon shipment and Services upon completion or thirty (30) days from shipment of Equipment, whichever occurs first.  Payment is due Net30 or as otherwise specified in the Quote. 

All amounts not paid and received in full by the due date  are subject to a finance charge at the rate of one and one half percent (1.5%) per month (eighteen percent (18%) per annum) or, if less, at the maximum rate permitted by law, from the date due until paid in full. Prices set forth in a Quote are subject to being adjusted due to extraordinary market conditions. As used herein, “extraordinary market conditions” means any increase in the cost of materials caused by changes in the market or for any other reason that is outside of Seller’s control such as tariffs, surcharges, increased logistics costs and fluctuations in currency and raw materials, which results in an overall price increase of the Equipment in excess of two percent (2%) above the price listed in the Quote. Each shipment is a separate sale and is subject to credit arrangements or to receipt of cash. If payment is not made in accordance with Seller’s payment terms, or if at any time, in Seller’s sole judgment, Buyer’s credit standing has been impaired, Seller may withhold shipment of any Equipment or the provision of any Services, until cash or credit arrangements have been established to Seller’s sole satisfaction. 

THESE TERMS AND CONDITIONS OF SALE APPLY WHENEVER PRODUCTS ARE SOLD TO A CUSTOMER IN EUROPE, MIDDLE EAST, AFRICA.

STANDARD TERMS AND CONDITIONS

  1. DEFINITIONS AND INTERPRETATION
    • In these Conditions: “Band-It” means Band-It Company Ltd, a company registered in England whose registered office is at 100 New Bridge Street, London EC4V 6JA, England; “Buyer” means the person(s), firm or company which receives a quotation or places an order for the purchase of the Goods with Band-It; “Conditions” means the standard terms and conditions of sale set out in this document and any special terms and conditions agreed in writing between the Buyer and Band-It; “Contract” means a contract between Band-It and the Buyer for the purchase and sale of Goods comprising the Buyer’s order, Band-It’s written form of acceptance and these Conditions. In the event of any inconsistency between these Conditions and the Buyer’s order or Band-It’s written form of acceptance, these Conditions shall prevail to the extent of the inconsistency; and “Goods” means goods supplied or agreed to be supplied by Band-It to the Buyer under any Contract.
    • In these Conditions:
      • headings are included for convenience only and shall not affect the construction of these Conditions;
      • any reference to statutes or statutory provisions (“legislation”), whether express or implied, shall be construed as referring to such legislation as amended or re enacted or as its application is modified from time to time by other provisions (whether before or after the date hereof) and shall include orders, regulations, instruments or other subordinate legislation under the relevant statute or statutory provision;
      • any reference to “writing” shall include any method of reproducing words in a legible and non-transitory form and includes any form of notation or code, whether by hand or otherwise and regardless of the method by which, or medium in or on which, it is recorded.
  2. QUOTES
    • Band-It may provide quotes in writing or by phone, email or fax. If a quote given by phone is confirmed by BAND-IT in writing or by email or fax, the price in BAND-IT’s written confirmation, email or fax shall be deemed to be the quoted price.
    • Unless and except to the extent expressly stated otherwise by BAND-IT in writing, quotes are non-binding and may be withdrawn or revised by BAND-IT at any time prior of an order by BAND-IT
  3. FORMATION OF CONTRACT AND BASIS OF SALE
    • Band-It shall sell and the Buyer shall purchase Goods in accordance with these Conditions which the Buyer, in entering into a Contract, shall be deemed to have accepted and which shall govern a Contract to the exclusion of any other terms and conditions.
    • A quotation by Band-It does not constitute an offer and Band-It reserves the right to withdraw or revise any quotation at any time prior to the acceptance of the Buyer’s order.
    • An order for Goods from the Buyer to Band-It shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.
    • A Contract shall be formed when acceptance of the Buyer’s order is confirmed in writing by Band-It or when Goods are despatched, whichever is earlier.
    • No order which has been accepted by Band-It may be cancelled or varied by the Buyer except with the agreement in writing of Band-It and on terms that the Buyer shall indemnify Band-It against any and all costs, claims, actions, liabilities, losses, damages, charges and expenses (including, without limitation, legal costs and expenses), suffered or incurred by Band-It in connection with that cancellation or variation.
    • In relation to any Contract, these Conditions, any order and Band-It’s written form of acceptance contain all the terms agreed between the Parties regarding its subject matter and supersede any prior agreement, understanding or arrangement between the parties, whether oral or in writing relating to its subject matter.
    • No representation, undertaking or promise shall be taken to have been given or implied from anything said or written in negotiations between the parties prior to the date of any Contract except as expressly stated in a Contract. Neither party shall have any remedy against the other in respect of any untrue statement made by it upon which that party relied in entering into a Contract (unless such untrue statement was made fraudulently or was as to a fundamental matter including a matter fundamental to the other party’s ability to perform its obligations under a Contract) and that party’s only remedies shall be for breach of contract as provided for in these Conditions. Misrepresentations as to fundamental matters shall be subject to the terms of Condition 9.
  4. QUANTITY AND DESCRIPTION
    • The quantity and description of the Goods shall be as set out in Band-It’s quotation.
    • Band-It reserves the right to make any changes in the specification of Goods, without prior notification or public announcement, which are required to conform with any applicable safety or other statutory or regulatory requirements and/or which do not materially affect the quality or performance of such Goods.
  5. PRICE
    • The price of Goods shall be the price quoted by Band-It to the Buyer or, where no price has been quoted, the price listed in Band-It’s published price list current at any time before delivery or as otherwise agreed between the parties in writing.
    • Band-It reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of Goods to reflect any increase in the cost to Band-It which is due to any factor beyond the control of Band-It including, without limitation, increases in the cost of labour, materials or other costs of manufacture (including those occasioned by changes to legislation affecting the manufacture of Goods), and/or any variation of the Contract including any change of delivery dates, quantities or specifications of Goods effected at the request of the Buyer and/or any delay caused by any instructions, act or omission of the Buyer including any failure of the Buyer to give Band-It adequate information or instructions.
    • Unless otherwise agreed in writing, all prices are calculated on the basis that Band-It will deliver Goods on an ex works basis (as set out in Incoterms 2000) Band-It’s premises and if Band-It agrees to deliver Goods to the Buyer, the Buyer shall be liable to pay Band-It’s costs for packaging, carriage, insurance and handling in accordance with Condition 5.1.
    • All prices quoted by Band-It are, unless stated otherwise, exclusive of Value Added Tax and all other applicable taxes and duties, which shall (if and to the extent applicable) be payable by the Buyer.
  6. PAYMENT
    • Unless otherwise agreed in writing, Band-It shall be entitled to invoice the Buyer for the price of Goods together with any transport, packaging, insurance, VAT and other charges payable on or at any time after delivery is effected in accordance with Condition 6.1.
    • The Buyer shall make payment of any amount invoiced by Band-It in full within 30 (thirty) days of the date of the invoice (unless agreed otherwise in writing) and the time of payment of the invoiced amount shall be of the essence of a Contract.
    • All sums due under a Contract shall be payable in full by the Buyer without deduction, withholding, set-off or counterclaim for any reason whatsoever, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, save as may be required by law.
    • If, in the opinion of Band-It, the creditworthiness of the Buyer shall have deteriorated prior to delivery of the Goods, Band-It may require full or partial payment of the price and/or other charges referred to in Condition 5.1 prior to delivery or the provision of security for payment by the Buyer in a form acceptable to Band-It.
    • If the Buyer fails, on the due date, to pay any sum due to Band-It under any Contract or to make any such arrangement as Band-It may require pursuant to Condition 5.4 then, without prejudice to any other right or remedy available to Band-It, Band-It shall (at its option) be entitled to:
      • treat the Contract as repudiated by the Buyer, to withhold any further deliveries to the Buyer under it or under any other Contract between them and to claim damages from the Buyer; and/or
      • affirm the Contract and to claim damages from the Buyer; and/or
      • appropriate any payment made by the Buyer to such of the Goods supplied under that Contract and any other Contract as Band-It may think fit (notwithstanding any purported appropriation by the Buyer); and/or
      • suspend performance of the Contract until payment is made in full or terminate the Contract immediately by written notice; and/or
      • charge the Buyer interest (both before and after any judgment) on the amount unpaid at the rate of 5% (five) per cent above Barclays Bank Plc’s prevailing lending rate from time to time, accruing on a daily basis until payment in full is made.
    • Where Goods are supplied for export from the United Kingdom, unless otherwise agreed in writing by both parties, payment of all amounts due to Band-It shall be secured by an irrevocable letter of credit satisfactory to Band-It opened by the Buyer in favour of Band-It immediately upon receipt of Band-It’s acceptance of order and confirmed by a bank in the United Kingdom acceptable to Band-It. The letter of credit shall be for the total of all amounts due under the relevant Contract and shall be valid for at least 6 (six) months or such longer period as shall have been estimated by Band-It for delivery.
  7. DELIVERY
    • Unless otherwise agreed in writing, delivery terms are FCA-Our Dock.  Goods shall be collected by the Buyer or its carrier from Band-It’s premises and delivery shall be effected by Band-It making Goods available for collection from such premises and notifying the Buyer that (and the date upon which) they are available for collection. Any dates quoted by Band-It for delivery are approximate only and Band-It shall not be liable for any delay in delivery of Goods and time shall not be of the essence in relation to those dates.  At the request of the buyer, Band-It may provide quotation for carriage under FCA-Sellers Premises, at the buyers cost, risk of loss of, or damage to the goods from the time they are delivered to the first carrier
    • Under agreed freight terms CPT (buyers premises), the buyer bears all the risks of loss of, or damage to the goods from the time they are delivered to the first carrier
    • If Band-It is satisfied that Goods have been short delivered, Band-It shall at its option:
      • make up any short delivery by despatching to the Buyer such Goods as Band-It is satisfied were not delivered; or
      • allow the Buyer credit in respect thereof; and Band-It’s liability in such circumstances shall be limited to making up the delivery or allowing credit as set out above.
    • Where Goods are to be delivered in instalments, delivery by Band-It of any one (1) or more of the instalments other than in accordance with these Conditions shall not entitle the Buyer to treat the Contract as a whole as repudiated.
    • If for any reason the Buyer fails to take delivery of the Goods at the time stated for delivery (otherwise than by reason of Band-It’s fault) or fails to give Band-It adequate delivery instructions, without prejudice to any other right or remedy available to Band-It:
      • risk in the Goods will pass to the Buyer (including for loss or damage caused by Band-It’s negligence);
      • the Goods will be deemed to have been delivered in accordance with Condition 6.1; or
      • Band-It may store the Goods until actual delivery and charge the Buyer for the reasonable related costs including, without limitation, storage, handling and insurance; or
      • Band-It may sell the Goods at the best price readily obtainable or otherwise dispose of the Goods or part of them and (after deducting all reasonable associated costs including, without limitation, costs of storage) shall either (as applicable) account to the Buyer for the excess over the total amount payable by the Buyer under the Contract or charge the Buyer for any shortfall between the proceeds of such re-sale or disposal and the total amount payable by the Buyer under the Contract.
      • If the Buyer wishes to make a claim for non-delivery, damage or breakage of or to Goods, they should make contact with the carrier directly.  Note: Under our agreed terms, the buyer has the insurable interest and Band-It are not able to compensate or replace.   
  8. RISK AND TITLE
    • The risk of loss and damage to the Goods shall pass to the Buyer immediately upon delivery to the carrier in accordance with Condition 6.1. Terms are FCA-Our Dock.
    • Notwithstanding delivery and the passing of risk in any Goods, beneficial and legal ownership in them shall remain with Band-It until Band-It has received in full (in cash or cleared funds) all sums due to it in respect of the Goods and all other sums which are or become due under any Contract.
    • Until such payment, the Buyer shall:
      • hold the Goods on a fiduciary basis as Band-It’s bailee;
      • store the Goods (at no cost to Band-It) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as Band-It’s property;
      • keep the Goods insured at its own expense in accordance with Condition 9;
      • not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods.
    • Band-It reserves the immediate right of repossession of any Goods which have not been paid for to which Band-It has retained title as aforesaid exercisable at any time after delivery or collection of Goods and the Buyer hereby grants an irrevocable right and licence to Band-It’s employees, agents and contractors to enter upon all or any premises where Goods are stored without prior notice for this purpose.
  9. WARRANTIES
    • Band-It warrants that Goods will correspond in all material respects with Band-It’s specification for a period of 12 (twelve) months from the date of delivery (the “Warranty”).
    • Band-It shall be under no liability under the Warranty:
      • if the Buyer fails to notify Band-It of any claim under the Warranty within 7 (seven) days after the date when the Buyer discovered or ought to have discovered the alleged defect;
      • unless Band-It is given a reasonable opportunity, after receiving notice of any claim in respect of the Goods which is based on an alleged breach of the Warranty, of examining the Goods and the Buyer shall return such Goods to Band-It’s place of business at the Buyer’s cost for the examination to take place there;
      • if the Buyer makes any further use of such Goods after giving notice to Band-It of any claim in respect of the Goods which is based on an alleged breach of the Warranty;
      • if the defect arises from or is attributable to any drawing, design or specification supplied by the Buyer or to materials or other property supplied by the Buyer or from any parts or items that have not been completely manufactured by Band-It;
      • if the defect arises from fair wear and tear, neglect, failure to follow Band-It’s oral or written instructions or recommendations, misuse or improper alteration or repair of the Goods;
      • if the defect arises out of the use of the Goods in conjunction with equipment or materials not reasonably contemplated by Band-It; or
      • if the total price for the Goods has not been paid by the due date for payment.
    • Where any valid claim in respect of Goods which is based on a breach of the Warranty is notified to Band-It within the Warranty period set out in Condition 8.1, Band-It shall at its option replace Goods (or any part(s) in question) free of charge or, at Band-It’s sole discretion, refund to the Buyer the price of affected Goods (or a proportionate part of the price) provided that, if Band-It so requests, the Buyer shall, at the Buyer’s expense, return the Goods or the part of such Goods which are defective to Band-It. Such replacement or refund shall be Band-It’s sole liability and the Buyer’s sole remedy under the Warranty.
    • Any Goods replaced will belong to Band-It and any repaired or replaced Goods will have the benefit of the Warranty for the unexpired portion of the 6 (six) month period specified in Condition 8.1.
  10. LIABILITY
    • Without prejudice to Condition 9.3, Band-It shall not be liable to Buyer under or in connection with any Contract for any loss of income, loss of actual or anticipated profits, loss of business, loss of contracts, loss of goodwill or reputation, loss of business, loss of anticipated savings, loss of, damage to or corruption of data, or indirect or consequential loss or damage of any kind, in each case howsoever arising, whether such loss or damage was foreseeable or in the contemplation of the parties and whether arising in or caused by breach of contract, tort (including negligence), breach of statutory duty or otherwise.
    • Without prejudice to Condition 9.3, Seller’s maximum aggregate liability to Buyer under or in connection with any Contract, whether arising in or caused by breach of contract, tort (including negligence), breach of statutory duty or otherwise, shall in no circumstances exceed 125% (one hundred and twenty five percent) of the price payable by the Buyer under that Contract.
    • Nothing in these Conditions shall exclude or in any way limit Band-It’s liability to the Buyer for (i) fraud, (ii) death or personal injury caused by its negligence (including negligence as defined in s. 1 Unfair Contract Terms Act 1977), (iii) breach of terms regarding title implied by s. 12 Sale of Goods Act 1979 and/or s. 2 Supply of Goods and Services Act 1982, or (iv) any liability to the extent the same may not be excluded or limited as a matter of law.
    • These Conditions set forth the full extent of the parties’ obligations and liabilities arising out of or in connection with a Contract, and there are no conditions, warranties, representations or terms, express or implied that are binding on the parties except as specifically stated or contemplated in these Conditions; any condition, warranty, representation or other term which might otherwise be implied into or incorporated in a Contract, whether by statute, common law or otherwise, is hereby expressly excluded.
  11. INSURANCE
    • The Buyer shall effect and maintain such insurance as the Buyer considers necessary in respect of its obligations and liabilities hereunder, including without limitation policies of public liability/product liability/professional indemnity insurance. Such policy or policies shall be with insurers, shall have face amounts and other terms reasonably acceptable to Band-It, and shall name Band-It as an additional insured. The Buyer shall provide written evidence of such coverages to Band-It upon Band-It’s request.
  12. INTELLECTUAL PROPERTY RIGHTS
    • All intellectual property rights in and in relation to the Goods shall remain the sole and exclusive property of Band-It.
    • If any claim is made against the Buyer that the Goods infringe, or that their use or resale infringes, the rights of any third party, Band-It may (at its option) either secure the Buyer’s right to continue to use the Goods or replace or modify the Goods to make them non-infringing, or, if neither of these alternatives is reasonably available to Band-It, refund the price paid for the Goods but shall have no further liability to the Buyer.
    • The Buyer shall indemnify and keep indemnified, and shall hold harmless Band-It fully on demand against any and all actions, claims, losses (including, without limitation, loss of profit, revenue or goodwill), damages, costs, charges and expenses (including, without limitation, legal costs and expenses) incurred by, or awarded against, Band-It in connection with, or paid or agreed to be paid by Band-It in settlement of, any claim for alleged infringement of any rights of any third party as a result of the carrying out by Band-It, its employees, sub contractors or agents of any work required to be done to Goods in accordance with the requirements or specifications of the Buyer.
  13. THIRD PARTY RIGHTS
    • No person other than a party to a Contract shall be entitled to enforce any term of it, save that where an agreement is entered into pursuant to which any rights and/or obligations contained in a Contract are assigned or novated to a third party, nothing in this Condition 12.1 shall, of itself, operate to prevent the assignee or novatee from taking the benefit of, and enforcing, any rights and/or obligations so assigned or novated.
  14. FORCE MAJEURE
    • Notwithstanding anything to the contrary in these Conditions, Band-It shall not be liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of Goods by Band-It being prevented, hindered, delayed or rendered uneconomic by reason of circumstances or events beyond Band-It’s reasonable control including, but not limited to, war, riot, civil commotion, acts of terrorism, sabotage, theft, malicious damage, confiscation, nationalisation, embargo, compliance with any law or governmental order, rule or regulation, the act of any government or authority (including refusal or revocation of any licence or consent), lack of usual means of transportation or communication, shortage or restriction of power supply, accident to or destruction or failure of machinery, premises or other installation, natural disasters, accidental fire, explosion, flood, storm, acts of God, strikes, lock-outs, labour disputes, shortage of labour, materials or utilities, or defaults of suppliers or sub-contractors. If due to such circumstances or events Band-It has insufficient stocks to meet all its commitments Band-It may apportion available stocks between its customers at its sole discretion.
  15. CONFIDENTIALITY
    • Each party agrees and undertakes that it will keep confidential, will not use for its own purposes and will not without the prior written consent of the other party disclose to any third party, any information of a confidential nature (including trade secrets and information relating to its business, clients, customers, business plans, affairs or activities which information is confidential and proprietary to that party) which may become known to it unless such information is public knowledge (other than by breach of this Condition 14) or is required to be disclosed by a court of competent jurisdiction.
  16. INSOLVENCY OF BUYER
    • Without prejudice to any other right or remedy available to Band-It, Band-It shall be entitled to treat any Contract as repudiated and/or withhold any further deliveries of Goods without any liability to the Buyer and, if any Goods have been delivered but not paid for, the total amount payable therefor shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary, if:
      • the Buyer is, or is deemed to be, insolvent or is unable to pay its debts as they fall due;
      • 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 passes a resolution for its voluntary winding up or has a petition for its compulsory winding up presented against it;
      • an encumbrancer takes possession, or a receiver or administrative receiver is appointed, of any of the property or assets of the Buyer; or
      • the Buyer ceases, or threatens to cease, to carry on business; or
      • any equivalent or analogous event or proceeding occurs in any other applicable jurisdiction; or
      • Band-It reasonably believes that any of the events mentioned above is about to occur in relation to the Buyer or any other matter which in the opinion of Band-It may prejudice its rights against the Buyer.
  17. GENERAL
    • The failure of Band-It to enforce or to exercise at any time or for any period of time any term of or any right pursuant to these Conditions does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect Band-It’s right later to enforce or to exercise it.
    • No alteration to any Contract shall take effect unless and until the same is in writing and signed on behalf of each of the parties by a duly authorised representative.
    • If any provision or part of a provision of a Contract is found to be illegal, invalid or unenforceable under any applicable law, such provision or part of a provision shall, insofar as it is severable from the remaining terms, be deemed omitted from the Contract and shall in no way affect the legality, validity or enforceability of the remaining conditions.
    • The Buyer may not assign or sub-license any Contract or any of its rights or obligations under a Contract without the prior written consent of Band-It.
    • Except as expressly stated in these Conditions to the contrary, all notices and other communications required or permitted to be given pursuant to any Contract shall be in writing and shall be delivered or transmitted to the recipient’s address or such other address as notified from time to time. Any notice shall be treated as having been served on delivery if delivered by hand, 4 (four) working days after posting if sent by pre-paid registered mail, 2 (two) working days after despatch if sent by courier and on confirmation of transmission if sent by facsimile.
    • The construction, validity and performance of all Contracts and these Conditions shall be governed by English law and the parties hereby submit irrevocably to the exclusive jurisdiction of the English courts to resolve any dispute between them provided that Band-It shall have the right, as claimant, to initiate proceedings against the Buyer in any other court of competent jurisdiction.
  18. Ban on Exports to Russia.          Buyer: 1) agrees that it will not sell, export, or re-export directly or indirectly to any entity within the Russian Federation or for use within the Russian Federation any goods supplied under this Agreement; 2) shall undertake its best effort to ensure that the purpose of clause (1) is not frustrated by any third parties further down Buyer’s commercial chain, including by resellers; 3) shall have set up and maintain an adequate monitoring mechanism to detect conduct by any third parties further down Buyer’s commercial chain, including by resellers, that would frustrate the purpose of clause (1).  4) Any violation by Buyer of clauses (1), (2) or (3), shall constitute a material breach of an essential element of this Agreement, and Seller shall be entitled to seek appropriate remedies including but not limited to:

    (i)                 Termination of this Agreement; and

    (ii)              a penalty equal to the value of the goods sold.

    (5) The Buyer shall immediately inform the Seller about any problems applying clauses (1), (2) or (3) of this Section including any relevant activities by third parties that could frustrate the purpose of paragraph (1).  The Buyer shall make available to the Seller information concerning compliance with the obligations under clause (1), (2) and (3) within 14 business days of the request for such information.