Unless otherwise agreed by OPR Limited the following terms and conditions (“terms”) shall apply to every purchase of goods from OPR Limited by any customer (“customer”).
1 – QUOTATIONS
Any quotations remain firm for acceptance within 30 days from the date of quotation unless withdrawn by OPR Limited, by notice to the customer, at an earlier date and before acceptance of the quote by the customer.
2 – PRICES
2.1 Subject to clause 2.2, OPR Limited’s quotations will remain valid for a period of 12 months from the date of the quotation.
2.2 Any losses arising as a result of fluctuations in the rate of exchange of foreign currencies paid or payable by OPR Limited in respect of the supply of the goods after the date that the customer’s order is confirmed to OPR Limited, shall be to the account of the customer. OPR will endeavour to give the customer as much notice as possible of any such fluctuations in rate of exchange of foreign currencies paid or payable by OPR Limited.
2.3 Without limiting the foregoing, the customer shall be liable for all taxes and duties not specifically included in the price quoted, including goods and services tax.
2.4 Unless otherwise specified freight and insurance costs shall be paid by the customer.
3 – CREDIT TERMS
3.1 Unless otherwise agreed by OPR Limited all sales are on a cash before delivery basis.
3.2 Any credit granted by OPR Limited shall be on the basis that the customer has completed OPR Limited’s credit application form and this application has been approved by OPR Limited, and payment in full (without deduction, retention or withholding) shall be due and payable on the 20th day of the month following the month in which delivery is made (time being strictly of the essence). Payment in full for each delivery on due date is a condition precedent to subsequent deliveries.
4 – DEFAULT INTEREST
Should the customer default on any payment due to OPR Limited then the customer shall pay to OPR Limited interest on such default payment(s) at the rate of 2% per annum above the interest rate charged to OPR Limited by its bankers on current account overdraft as at the date such payment was due, calculated from the date payment was due until the outstanding debt is paid in full and compounding monthly.
5 – FORCE MAJEURE
OPR Limited shall not be responsible for any delay in the manufacture or delivery of any goods where such delay is caused (directly or indirectly) by any cause whatsoever beyond the reasonable control of OPR Limited. Any time for delivery of the goods to trade customers shall be approximate only and shall not be deemed to be of the essence of the contract. No such delay shall relieve the trade customer from its obligation to pay for any goods already delivered and the trade customer shall accept delivery of any of the goods ordered if such delivery is tendered by OPR Limited after the cause of the delay has ceased. During the period of delay OPR Limited may allocate goods between its trade customers in such manner as in its sole discretion it deems fair and reasonable.
6 – RISK
Risk shall pass to the customer at the time of delivery.
7 – RETENTION OF OWNERSHIP
7.1 While risk in the goods delivered by OPR Limited shall pass on delivery, legal and equitable title shall remain with OPR Limited until it has received full payment therefore.
7.2 Pending such payment the customer shall hold the goods as bailee and shall identify the goods as belonging to OPR Limited and store the goods separately from its own goods. The customer may sell or deal with the goods in the ordinary course of business subject to any proceeds being paid into a separate account and appropriated first in paying all sums owing to OPR Limited for the goods.
7.3 Should the customer fail to make due payment for the goods, or by an act or omission enable the appointment of a receiver or liquidator, then OPR Limited may enter onto the customer’s premises to recover the goods and resell the same for its own benefit.
9 – CONSUMER GUARANTEES ACT
9.1. OPR Limited and the customer each irrevocably acknowledge and agree, for the purposes of the Consumer Guarantees Act 1993 (“CGA”), that where goods are supplied by OPR Limited, and acquired by the customer, in trade for business purposes:
(a) each party is in the business of trade;
(b) each party agrees to contract out of the CGA and the provisions of the CGA are excluded in relation to the supply of goods by OPR Limited;
(c) it is fair and reasonable that the parties are bound by these terms.
9.2 If the customer is not obtaining the goods for business purposes then to the extent that any provision in this agreement is inconsistent with the CGA, the provisions of the CGA will prevail.
9.3 The customer shall not, in relation to the supply by the customer of the goods in trade, give or make any undertaking, assertion or representation in relation to the goods without the prior approval in writing of OPR Limited, and the customer shall indemnify OPR Limited against any liability or cost incurred by OPR Limited as a result of any breach by the customer of this provision.
9.4 The customer shall, in relation to any supply of the goods by the customer to a consumer in trade, contract out of the provisions of the CGA to the extent that the customer is entitled to do so under the CGA and shall indemnify OPR Limited against any liability or cost incurred by OPR Limited under the CGA as a result of any breach by the customer of this provision.
9.5 Subject to clause 9.2:
(a) the customer acknowledges that it relies entirely on its own skill and judgment as to the fitness for purpose, application, design, suitability, use and installation of the goods; and
(b) the customer hereby waives any rights it may have at common law, by statute or otherwise howsoever against OPR Limited in respect thereof.
10 – LIABILITY
10.1 Subject to clause 9.2, the liability of OPR Limited for defective goods and loss caused by defective goods is limited to, at the sole option of OPR Limited:
(a) replacing the defective goods; or
(b) refunding the sale price of the defective goods.
10.2 Subject to clause 9.2, Any claim based on defective goods must be made to OPR Limited within two working days (excluding weekends) of delivery of the goods to the customer (time being strictly of the essence). OPR Limited is to be given a reasonable opportunity to investigate the claim.
10.3 Subject to clause 9.2, OPR Limited shall not be liable to the customer, or anyone claiming through the customer, for labour, material or any other costs incurred in removing defective goods and refitting any replacement.
10.4 Subject to clause 9.2, Returns will be subject to a surcharge of 20%.
10.5 Subject to clause 9.2, in no event shall OPR Limited or any of their representatives be liable for any special, exemplary, punitive, incidental, indirect or other consequential damages of any kind, lost profits, lost revenue, or lost savings, whether based in contract, negligence, tort or otherwise, which arise out of or are in any way connected with (i) these terms, (ii) any use of goods supplied by OPR Limited, (iii) any failure or delay, or (iv) the performance or non-performance by OPR Limited, even if OPR Limited had been advised of the possibility of such damages.
11 – CANCELLATION
Once the customer has placed an order for goods with OPR Limited it cannot be cancelled without the prior written consent of OPR Limited.
12 – DELIVERY
12.1 For the purpose of these terms the term “delivery” shall mean the granting of possession of the goods by OPR Limited to the customer ex warehouse (as that term is defined in Incoterms 1980) unless the contract expressly states otherwise.
12.2 Goods may be delivered to trade customers in instalments and in each such case each delivery shall be regarded as a separate contract and goods delivered shall be paid for accordingly.
13 – SEVERABILITY
Any part of these conditions is severable and if any provision is held to be illegal or unenforceable for any reason, such illegality, or unenforceability shall affect only that portion of these conditions which is in conflict and the remainder of these conditions shall remain in full force and effect.
14 – ENTIRE AGREEMENT
These terms shall, to the extent permitted by law, prevail over all previous or other terms and conditions of sale (verbal or written) between the customer and OPR Limited.