Conditions of Sale

The following Conditions of Sale (the “Conditions”) apply to all sales of goods (“Goods”) by Bisley International, LLC (“Seller”) to any purchaser (“Buyer”). These Conditions apply to the exclusion of any terms or conditions contained in any purchase order, confirmation, correspondence or other document issued by the Buyer, to the extent such terms conflict with or purport to modify these Conditions.

1. Preliminary Provisions

• Incoterms. Incoterms 2000 (as amended) are expressly incorporated into these Conditions. In the event of any conflict between the applicable Incoterm and the express provisions of these Conditions, the express provisions set out herein shall prevail.
• Exclusion of CISG. The application of the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) is expressly excluded with respect to this Contract and any sale of Goods under it.

2. Retention of Title

Legal and beneficial title to the Goods shall remain with the Seller until the Seller has received payment in full of all amounts due to the Seller from the Buyer on any account whatsoever. Until such time as all sums owing are paid in full:

• the Buyer holds the Goods as a fiduciary bailee for the Seller and shall keep the Goods in its possession and control;
• the Buyer shall store the Goods separately from any other goods in its possession and in a manner that makes them readily identifiable as the property of the Seller;
• the Buyer shall keep the Goods in good and merchantable condition and shall fully insure the Goods against loss or damage from all usual risks, with any insurance proceeds relating to the Goods to be held for the benefit of the Seller;
• the Buyer shall not sell or otherwise dispose of the Goods except with the prior written consent of the Seller or in the ordinary course of the Buyer’s business, and then only on an arm’s length basis and on market terms;
• the Buyer shall not create or permit to exist any charge, lien, pledge or other encumbrance over the Goods that is inconsistent with the Seller’s rights of ownership; and
• to the extent the Buyer resells the Goods, or uses the Goods in any manufacturing or production process and sells the finished products, the portion of the sale proceeds attributable to the Goods shall be held by the Buyer in a separate account in trust for the Seller in an amount equal to the unpaid balance owing to the Seller at the time such proceeds are received.

3. Delivery and Claims

• Deliveries may be made in one or more instalments or parcels. Each delivery shall constitute a separate contract, and the failure of any delivery shall not entitle the Buyer to treat the entire Contract as repudiated.
• If the Buyer defaults in making any payment when due, or becomes insolvent or is placed under any form of external administration, the Seller may, at its option, withhold further deliveries, require payment in cash before any further deliveries, or cancel any undelivered portion of the Contract.
• The Seller shall have no liability whatsoever in respect of any claim by the Buyer relating to the Goods, whether based on breach of contract, negligence or otherwise, unless such claim is made in writing to the Seller within seven (7) days following delivery of the Goods to the Buyer.

4. Price, Taxes and Duties

• If any sales tax, value added tax, goods and services tax or similar tax is assessed by any jurisdiction in respect of the sale of the Goods, the Seller may charge and collect such tax from the Buyer and shall remit the amount collected to the appropriate taxing authority.
• The prices quoted or agreed with the Buyer are based on the rate of customs duty and other import charges in effect on the date of the Contract. Any variation in such rates prior to the date of delivery or payment (as applicable) shall be for the account of the Buyer, unless the parties have expressly agreed otherwise in writing.

5. Shipment

• Unless otherwise expressly stated in the Contract, transshipment and partial shipment of the Goods are permitted.
• Notwithstanding any agreed shipment date or mode of transport, shipment within the agreed time frame is subject to the availability of freight space and the schedules of carriers. The Seller shall not be liable for any delay or failure in shipment resulting from lack of freight availability.

6. Warranties and Liability of Seller

• The Seller warrants that it has the right to sell the Goods and that, on delivery, the Goods will be free from any charge, encumbrance or adverse claim of any kind.
• Except as expressly set out in these Conditions and to the fullest extent permitted by applicable law, no other warranties or conditions, whether express or implied, including any implied warranties of merchantability, fitness or suitability for a particular purpose, are given by the Seller. The Buyer acknowledges that the Goods are sold by the Seller by reference to the manufacturer’s specifications and that the Seller does not independently test or verify those specifications.
• Where any non-excludable term, condition or warranty is implied into these Conditions by applicable law, the liability of the Seller for breach of such term, condition or warranty shall, to the extent permitted by law and at the option of the Seller, be limited to:
  • replacement of the Goods or the supply of equivalent goods; or
  • repair of the Goods or payment of the cost of replacing or repairing the Goods.
• The Seller’s aggregate liability to the Buyer, whether arising in contract, tort (including negligence) or otherwise, shall in no event exceed the price of the Goods giving rise to the claim.
• The Seller shall have no liability whatsoever to any third party in respect of the Goods or anything done or omitted to be done by the Seller under or in connection with the Contract or the Goods, whether such claim is made in contract, tort (including negligence) or on any other basis. The Buyer agrees to indemnify and hold harmless the Seller from and against any and all claims, losses, liabilities, damages, costs and expenses asserted by any third party arising out of or in connection with the manufacture, supply, resale or use of the Goods.

7. Assignment

The Buyer shall not assign, transfer or otherwise deal with the Contract or any of its rights or obligations under the Contract without the prior written consent of the Seller. Any attempted assignment in breach of this provision shall be void and of no effect.

8. Force Majeure

The Seller shall not be deemed to be in default or otherwise liable for any delay in performance or failure to perform any of its obligations under the Contract if such delay or failure results from causes beyond its reasonable control, provided that the Seller promptly notifies the Buyer of such causes and uses reasonable diligence to overcome or remove them as soon as practicable.

Causes beyond the reasonable control of the Seller include, without limitation, natural disasters (such as earthquakes, fires, floods or other acts of God), strikes or other labour disputes, government actions or interventions, pandemics or epidemics and related governmental orders, power or communication failures, plant breakdowns, shortage of raw materials, transportation disruptions and other similar events.

9. Governing Law

The Contract and these Conditions shall be governed by, and construed in accordance with, the laws of the State of Texas and, where applicable, the federal laws of the United States, without giving effect to any choice of law or conflict of law rules that would result in the application of the laws of any other jurisdiction.

10. Dispute Resolution

It is the intention of the parties, without creating any legal obligation that would prevent either party from commencing court proceedings where it deems appropriate, that any dispute or difference arising out of or in connection with the Contract be resolved in accordance with the provisions set out in this Section.

Any dispute or difference whatsoever arising out of or in connection with the Contract, including any question regarding its existence, validity or termination, shall be submitted to and finally resolved by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (AAA), as in effect at the time the arbitration is commenced.

• There shall be one (1) arbitrator appointed in accordance with the AAA rules.
• The language of the arbitration shall be English.
• Unless the parties agree otherwise, the seat and place of arbitration shall be Houston, Texas, USA.

The award rendered by the arbitrator shall be final and binding upon the parties and may be entered and enforced in any court of competent jurisdiction.