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4B USA - Terms & Conditions of Sale

 

1. General
4B USA (herein after – “the Company”) concludes contracts for the supply of goods (which expression shall mean plant, machinery, goods or services) only subject to these conditions and the Buyer seeking to be supplied with goods by the Company accepts that these conditions will govern relations between himself and the Company to the exclusion of any other terms, conditions, warranties and representations, written or oral, express or implied even if contained in any of the Buyer's documents which purports to provide that the Buyer's own terms or conditions shall prevail. No additional terms or variations of these conditions will be valid unless agreed to in writing and signed by a Director of the Company.


2. Limitations on Selling Agents

"Selling Agents" of the Company have no actual or approved authority to enter into any contract or agreement on behalf of, or in the name of the Company or binding on the Company. Any orders placed are not binding upon the Company until accepted in writing by the Company.

Selling agents of the Company have no express or ostensible authority to negotiate or settle or compromise any dispute or action, or to release, or grant any concession to any debtor of the Company.


3. Contractual Obligations
Any offer to purchase in response to the Company's quotation shall not constitute a contract until and when the Company's acknowledgment of the Buyer's offer of the Company's quotation has been sent to the Buyer. The Company's quotation may be withdrawn or altered at any time up to the issue of the Company's acknowledgment of the Buyer's offer.


4. Terms of Payment
Payment on all contracts is due net cash within thirty days of invoice unless other terms have been agreed upon. No defect discovered after use shall interfere with due payment by the Customer. If the Customer refuses to accept delivery of the goods and pay the price or if within seven days notice being sent to a Customer that the goods are ready to be forwarded to or collected by the Customer no forwarding instructions are received by the Company and the goods are not collected the price shall be immediately payable by the Customer and the goods shall be at the entire risk of the Customer.

Overdue payments will (at the discretion of the Company) be subject to a surcharge of 1-1/2% per month.

Property in the goods shall not pass to the Buyer until payment has been made in full.

 

5. Prices
The prices specified in our quotation shall be subject to increase or decrease according to fluctuation in costs of wages and materials. If work is suspended by reason of the Customer's instructions or lack of instructions the contract price shall or may be increased to cover any extra expenses and costs thereby incurred by the Company.

 

6. Delivery
Unless otherwise provided in the quotation, delivery of the goods shall be completed at the Company's factory premises and risk and liability for loss or damage thereafter shall pass to the Buyer.

 

7. Delivery Prevented or Hindered
The Company shall use its best endeavors to ensure that delivery dates are kept but time shall not be of the essence to the contract. However, should the Company be in anyway prevented or hindered by a cause beyond its reasonable control (including but not limited to a force majeure, strikes, lockouts or other industrial action, import or export embargoes, governmental interventions, alteration of English or foreign exchange rates and carriage delays) from meeting these delivery dates, the Company shall not be bound to make delivery of any goods (which it may have contracted to manufacture, sell and/or supply) and the Company shall not be liable in any manner whatsoever for loss or damage suffered by the Buyer as a result of any such failure or delay in delivery when so prevented or hindered. In the event of any such delays the Buyer shall not be entitled to rescind the contract except upon terms previously agreed with the Company.

 

8. Loss or Damage in Transit
No liability can be accepted by the Company to replace or repair any goods lost or damaged in transit unless (a) in the case of loss written Notice shall be given by the Customer both to the carrier and to the Company within seven days of the date of our packing list / delivery note or (b) in the case of damage it shall be reported to the carrier immediately on delivery and in either event written notice shall be given to the Company and the carrier within three days of such delivery.

 

9. Packing
Unless otherwise specified packing will be in accordance with the Company's standard practice. Bags, cases or containers will be charged for.

 

10. Quantities
Due to the difficulty of producing exact quantities and unless otherwise specifically agreed the Company reserves the right to vary the quantity by a maximum of plus or minus ten per cent. The invoice for the goods will be based on the actual quantity delivered in accordance with normal practice.

 

11. Partial Completion
In the case of partial completion of an order by reason of any of the events referred to in clause 5 and 7 of these conditions, the Company shall be entitled to quantum meruit payment in respect of all work done by it without prejudice to the rights should non completion be occasioned by the Buyer.

 

12. Drawings, Specifications Etc.

  1. All descriptions, drawings, illustrations, particulars of weights and measures, rating, standards, statements or details as to performance, specifications or other descriptive matter, not contained in any quotation, are given without responsibility as to performance or suitability for the Buyer's needs and shall not form part of the description of the goods supplied or to be supplied, so that the Company shall not be under any liability in respect thereof.
  2. All plans, drawings, designs, specifications and other written technical materials forming part of the contract or supplied in connection therewith shall remain the property of the Company and shall not be copied or disclosed to third parties without the written consent of the Company. The Buyer shall return the same to the Company forthwith upon request by the Company to do so and acknowledges that in the event of breach they shall be liable (inter alia) to account to the Company for all gain and profit to themselves and losses to the Company.
  3. The Company is to be indemnified by the Buyer against any claims or action brought or made against the Company for infringement of any patent or similar rights arising through compliance with the Buyer's designs, samples or instructions expressed or implied.

13. Tooling
Where the Company provides special tooling for the production of the Buyer's order when these tools shall be charged at part cost to the Buyer and shall be used exclusively for the production of the Buyer's orders. Tools shall remain the property of the Company, except when the quotation states "full cost" when the tools shall become the property of the Buyer upon payment in full.


14. Product Warranty Information

  1. EXCLUSIVE WRITTEN LIMITED WARRANTY

    ALL PRODUCTS SOLD ARE WARRANTED BY THE COMPANY 4B COMPONENTS LIMITED, (4B) BRAIME ELEVATOR COMPONENTS LIMITED, AND (4B) S.E.T.E.M. Sarl HEREIN AFTER REFERRED TO AS 4B TO THE ORIGINAL PURCHASER AGAINST DEFECTS IN WORKMANSHIP OR MATERIALS UNDER NORMAL USE FOR ONE (1) YEAR AFTER DATE OF PURCHASE FROM 4B. ANY PRODUCT DETERMINED BY 4B AT ITS SOLE DISCRETION TO BE DEFECTIVE IN MATERIAL OR WORKMANSHIP AND RETURNED TO A 4B BRANCH OR AUTHORIZED SERVICE LOCATION, AS 4B DESIGNATES, SHIPPING COSTS PREPAID, WILL BE, AS THE EXCLUSIVE REMEDY, REPAIRED OR REPLACED AT 4B’S OPTION.

  2. DISCLAIMER OF IMPLIED WARRANTY

    NO WARRANTY OR AFFIRMATION OF FACT, EXPRESSED OR IMPLIED, OTHER THAN AS SET FORTH IN THE EXCLUSIVE WRITTEN LIMITED WARRANTY STATEMENT ABOVE IS MADE OR AUTHORIZED BY 4B. 4B SPECIFICALLY DISCLAIMS ANY LIABILITY FOR PRODUCT DEFECT CLAIMS THAT ARE DUE TO PRODUCT MISUSE, ABUSE OR MISAPPLICATIONS, AS AUTHORIZED BY LAW, 4B SPECIFICALLY DISCLAIMS ALL WARRANTIES THAT THE PRODUCT IS FIT OR MERCHANTABLE FOR A PARTICULAR PURPOSE.

  3. NO WARRANTY "BY SAMPLE OR EXAMPLE"

    ALTHOUGH 4B HAS USED REASONABLE EFFORTS TO ACCURATELY ILLUSTRATE AND DESCRIBE THE PRODUCTS IN ITS CATALOGS, LITERATURE, AND WEBSITES, SUCH ILLUSTRATIONS AND DESCRIPTIONS ARE FOR THE SOLE PURPOSE OF PRODUCT IDENTIFICATION AND DO NOT EXPRESS OR IMPLY A WARRANTY AFFIRMATION OF FACT, OF ANY KIND OR A WARRANTY OR AFFIRMATION OF FACT THAT THE PRODUCTS WILL CONFORM TO THEIR RESPECTIVE ILLUSTRATIONS OR DESCRIPTIONS. 4B EXPRESSLY DISCLAIMS ANY WARRANTY OR AFFIRMATION OF FACT, EXPRESSED OR IMPLIED, OTHER THAN AS SET FORTH IN THE EXCLUSIVE WRITTEN LIMITED WARRANTY STATEMENT ABOVE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

  4. LIMITATION OF DAMAGES

    5. ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR LOSS OF PROFIT WHETHER DIRECT OR INDIRECT, IS EXPRESSLY DISCLAIMED.

15. Liability and Indemnity

  1. In the respect of installation or applications of the goods sold or services provided as part of or integrated as components of other goods or machinery the Buyer shall be solely responsible for the installation of same in full compliance with applicable safety regulations, standards, laws, regulations, and custom and practice, issued by competent authorities and in force at the place of operation.
  2. The Buyer shall be solely responsible for compliance with any terms of insurance notified by the Buyer's insurance for personal injury or damage to property or loss of profit through fire, explosion gas or otherwise.
  3. Neither the Company not its suppliers shall in any circumstances whatsoever be liable for any loss or damage suffered by the Buyer or by any third party howsoever caused involving any person, property or interest, suffered by the Buyer or any third party directly or indirectly in connection with the use, functioning or state of the goods.
  4. The Buyer shall indemnify (including charges for attorney’s fees, expert witness fees, court costs, depositions, and other typical expenses incurred in the defense of litigation, as well as indemnity for a judgment) the Company against all actions, claims or demands by third parties, whether in tort or otherwise, howsoever arising, directly or indirectly, in connection with the use, function, or state of goods or services sold or provided by the company to the buyer.

16. Limitation of Damages

ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR LOSS OF PROFIT WHETHER DIRECT OR INDIRECT, IS EXPRESSLY DISCLAIMED.

 

17. Return Material Authorization (RMA)

An RMA number is required for all product returns.  This allows us to receive the product at our facility, track the return through our system and provide a timely turnaround.  Please contact the 4B office directly to obtain this number.

  1. All shipping and insurance costs for returning a product are the responsibility of the sender.  Collect shipments will not be accepted.
  2. New, unused standard products, in good resaleable condition can be returned for credit provided that they are returned within one year of the original ship date.  A 22% minimum re-stock fee for all returned products is typically assessed and any credit due is applied to the customer’s account and can be used against future orders.
  3. “Special Order” products are non-returnable.  These include miscellaneous special made-to-order items such as, urethane, fabricated, low profile, special drilled or vented buckets, belting, fabricated chains and sprockets/hubs.
  4. Non-warrantable work will be billed at normal service department rates.  A minimum of 1/2 hour technician time will be billed per product.
  5. Warrantable goods will be repaired or replaced at the discretion of 4B Components Ltd.  4B Components Ltd. is only responsible for defects in the material or workmanship of its products.  Consequential damage claims of any type will not be entertained.

NOTE: These terms are totally at the discretion of 4B

 

18. Lien

The Company shall hold a general lien on all goods ordered by the Customer against any outstanding liability due from the Buyer to the Company. Such lien shall be exercised at the discretion of the Company affecting the whole or any part of each contract or order or other indebtedness.

 

19. Clerical Errors
Typing and clerical errors and omissions are subject to correction at any time.

 

20. Title and Ownership

  1. Except in the case of export sales in which the terms of the quotation or tender express or implied otherwise, the property in any part of the goods (whether the legal, equitable or beneficial interest therein) shall not pass from the Company until the Customer shall have paid the Company the whole of all sums due to the Company under this contact.
  2. Until such payment is made the Customer shall possess all goods and materials the property in which is vested in the Company by virtue of this condition on a fiduciary basis only and as bailee only for the Company. The Customer shall store such goods and materials at no cost to the Company and so that they are clearly identified as belonging to the Company.
  3. If any payment is overdue the Company shall be entitled (without prejudice to any other rights and remedies) to recover and resell any or all of such goods or materials and may enter upon any land or building upon which the goods are situated or which the goods have become incorporated for that purpose; the Buyer acknowledges the right of the Company to so enter upon the land building or premises to so recover such possessions.
  4. The Buyer has the right as agent of the Company to sell for the account of the Company any goods or materials the said property in which is vested in the Company by virtue of this condition and to pass good title to the goods or products to his Customer being a bona fide purchaser for value without notice of the Company's rights. In such event the Company shall be entitled to, and the Customer shall be under a fiduciary duty to retain in a separate account and to pay to the Company the proceeds of such sale to the extent that any monies are owed by the Customer to the Company. In addition, to the Company shall be entitled to make a claim directly against the Buyer's Customer for any purchase moneys unpaid by such Customer provided that the Company shall return to the Buyer any moneys recovered in excess of the amount then owed by the Buyer to the Company together with costs and expenses involved in making such claims.
  5. In the event that the Buyer, being a body corporate, shall have a Receiver or Manager appointed or commit an act of bankruptcy or convene a meeting for the purpose of liquidation or arrangement with creditors, or, being an unincorporated body of person, shall commit an act of bankruptcy, the Company shall be entitled immediately to retake possession of the whole or part of any goods supplied and unpaid for.

21. Legal Construction
The contract shall be construed as an Illinois contract and in accordance with Illinois Law and the parties agree to submit to the jurisdiction of the Illinois Courts unless otherwise expressly agreed.

 

22. Exceptions
In the event of any clause, sub clause or any part thereof being for any reason, invalid or unenforceable, such shall not prejudice the remaining terms and conditions herein contained, which shall remain in full force and effect notwithstanding the deletion of any such clause or part thereof.


>> Revised 6/19/18 <<