GENERAL

​1.1. The “Company” shall mean ELSTEEL and the “Customer” shall mean the person, firm or company who places a purchase order with the Company. The “Goods” shall mean the products manufactured and sold by the Company to its Customers.

1.2. These Terms and Conditions of Sale shall apply to the sale of Goods upon receipt of the Company's Order Confirmation by the Customer. 

 
1.3. These Terms and Conditions shall apply in addition to any ongoing arrangement or existing contract between the Company and the Customer for the sale of Goods. In the event of any conflict or inconsistency, these Terms and Conditions, together with the Order Confirmation, shall prevail unless otherwise agreed by the parties in writing or excluded herein. Where no conflict or inconsistency exists, the Terms and Conditions shall operate to supplement such ongoing arrangement or existing contract for the sale of Goods.

1.4. In the absence of any ongoing arrangement or existing contract between the Company and the Customer, these Terms and Conditions herein shall constitute the contract between the Company and the Customer for the sale of Goods.

1.5. Unless specifically agreed to the contrary all trade terms shall be interpreted in accordance with the current edition of INCOTERMS.

1.6. The terms “Terms and Conditions” and “Contract” shall be used interchangeably herein where appropriate.

ORDER CONFIRMATION

2.1. The Customer shall place an order with the Company by means of a purchase order with clear order details. An Order Confirmation is issued by the Company within five (05) working days in response to the Customer’s purchase order.

2.2. The Order Confirmation is acknowledged by the Customer within twenty-four (24) hours of its receipt. Any changes or objections to the Order Confirmation should be notified to the Company within forty-eight (48) hours of its receipt. Change requests received after this period may not be able to be accommodated in certain cases or may result in a revised dispatch date (referred to as “ETD” in Order Confirmation).

2.3. In the event of non-receipt of acknowledgement, change request or objection to the Order Confirmation from the Customer within the time limits set out in 2.2, the Order Confirmation shall be deemed accepted by the Customer. 

2.4. Order Confirmations may not be cancelled if the manufacturing of the Goods has commenced. 

PRICES, TAXES & TARIFFS

3.1. All prices are determined in accordance with the price list of the Company applicable at the time of the ordering of the Goods.

3.2. The Company reserves the right to revise the prices at short notice.

3.3. Any unexpected increase in taxes and tariffs (including import or export duties) arising from changes in global or jurisdiction-specific regulations may result in value adjustments to the orders in progress. Such adjustments are mutually agreed by the parties and the Order Confirmation shall be updated accordingly.

 

PAYMENTS

4.1 The payment term stipulated in the Order Confirmation shall be applicable to the sale and delivery of the Goods, unless otherwise agreed by the parties.

4.2. The Customer shall make the payments to the Company in accordance with the payment term within the period of time allowed and the currency stipulated in the Order Confirmation to the total value therein. 

4.3. Bank charges are shared between the parties.

DELIVERY

5.1  The delivery term (INCOTERMS) stipulated in the Order Confirmation shall be applicable to the delivery of the Goods, unless otherwise agreed by the parties.

5.2. The Company shall manufacture and arrange the delivery of the Goods in accordance with the delivery term stipulated in the Order Confirmation. The customer shall make arrangements to collect the Goods in a timely manner in accordance with the agreed delivery term, in order to avoid additional storage fees or demurrage charges.

5.3. In the event the delivery term requires the Customer to collect the Goods, the Company shall notify the Customer the completion of production and the availability of the Good for prompt collection. The Customer shall make arrangements to insure the Goods in such collections, as defined by the applicable INCOTERM or up to the Customer’s intended destination. The delivery obligation of the Company is deemed fulfilled upon such collection of the Goods by the Customer or its agent. 

5.4. A storage fee of USD 100.00 per day will be levied on orders not collected within three (03) working days of the collection notification.

5.5. Delivery of Goods shall be deemed completed when the Goods are unloaded at the location specified by the Customer or when the Goods are taken over by the Customer, its agent or authorized representative, whichever is applicable under the agreed delivery term.

5.6. The Company shall not be responsible for any delay in delivering the Goods due to circumstances beyond the control of the Company.

5.7. An increase in carrier or freight charges may result in adjustments to the delivery charges of the orders in-progress. 

ACCEPTANCE OF GOODS

6.1. The Customer shall inspect and confirm in writing to the Company that the Goods are in accordance with the order and the specification in quantity and quality respectively within five (05) working days of receipt of the Goods. Failure to provide such confirmation within the specified period shall be considered as acceptance of the Goods without any objection.

6.2. Goods once sold are not accepted by the Company unless they are found to be defective or having quality issues within the warranty period.

6.3. Goods once sold are not re-purchased by the Company under any circumstances. 

 

TITLE AND RISK

7.1  The title to the Goods shall pass to the Customer upon receipt of the full payment by the Company being made against the Order Confirmation. The risk in Goods shall pass to the Customer upon delivery of the Goods.

OWNERSHIP OF INTELLECTUAL PROPERTY

8.1. The ownership of the intellectual property, whether registered or unregistered, in the Goods exclusively rests with the Company unless otherwise agreed by the parties. The intellectual property includes designs, technical documentation, drawings, trademarks and any other proprietary and confidential  information related to the Goods.

8.2. Without prejudice to any other lawful right available or stipulated under these Terms and Conditions, in the event of infringement of the Company’s intellectual property rights, the Company shall seek injunctive or other equitable relief from a court of competent jurisdiction as may be necessary or appropriate to prevent any appropriation or use of intellectual property. The infringement of intellectual property shall include but not limited to reproducing, modifying or reverse engineering the Goods and related documentation.

WARRANTY

9.1. Unless otherwise agreed in an existing contact, the Company warrants that the Goods sold are free from defects in workmanship and material, for a period of one (01) year from the date of shipment/dispatch of the Goods. If any defect occurs within the aforesaid period, for the occurrence of which the Company is responsible, the Company shall repair or replace the defective Goods free of charge.

9.2. The Customer shall notify the Company of any defect occurring in any of the Goods during the warranty period immediately upon becoming aware of such defects and in any event not later than thirty (30) days after becoming so aware (or should have become aware), failing which the Company shall not have any liability for such defect. 

9.3. Except as set forth herein, there are no warranties, expressed or implied, with respect to the Goods dispatched.

 
9.4. Any implied warranty of merchantability and fitness for a particular purpose, application or use are excluded from the Company’s warranty. The Company shall not be liable for special, incidental or consequential damages, whether such damages are sought in contract, in tort or otherwise. 

LIMITATION OF LIABILITY

10.1. The Customer shall indemnify and hold the Company harmless against all claims, demands, actions and liabilities made from or against, instituted against or incurred by the Company arising out of Customer’s failure to comply with applicable laws, rules, regulations or other provisions in the Customer’s territory, the negligence or willful misconduct of the Customer, its officers, employees and agents.

10.2. The Company’s liability in respect of product failures and breach of professional duty of its directors, executives or employees, are limited as set out in 10.2.1 and 10.2.2 This sets out the entire liability of the Company towards its Customers for any such occurrences that take place within the term of the Company’s insurance policies:
    10.2.1. Damages to the property and bodily injuries due to product failures –total aggregate liability up to USD 5m and
    10.2.2. Losses due to breach of professional duty (any negligent act, error or omission) – total aggregate liability up to USD 2m.  

10.3. Except as provided in uses 10.1 and 10.2, neither Party shall be liable to the other Party in any circumstances whatsoever for any loss (including depletion of goodwill or similar losses, loss of contract; any special, indirect, consequential or pure economic loss), costs, charges, expenses or damages.

10.4. Unless otherwise agreed in an existing contract, nothing in Clause 10.3 limits or excludes the liability of either Party towards:
    10.4.1. death or personal injury resulting from negligence; or
    10.4.2. any damage or liability incurred by either party as a result of fraud or fraudulent misrepresentation by the other Party; or
    10.4.3. any other loss which cannot be excluded or limited by the applicable law.

10.5. The Company shall maintain valid commercial general liability (public and product liability) insurance policy and professional indemnity insurance policy with suitable coverage limits to cover its losses arising from the product failures and breach of professional duty of its directors, executives or employees. 

FORCE MAJEURE

11.1  If the Company is unable to manufacture the Goods for any reason beyond its control including but not limited to strikes, lockouts, fire, accidents, delays in receipt of raw materials, bought-in goods or components or anything beyond the reasonable control of the Company, the Company shall suspend manufacturing of the Goods until the end of the reason given for such suspension provided that the Company shall, where reasonably possible, notify the Customer within ten (10) working days of the commencement of such reason.

 
TERMINATION

12.1  Unless otherwise agreed in an existing contract, the contract for sale of Goods shall be terminated with one (01) month written notice upon breach of the contract by either party.

GOVERNING LAW AND JURISDICTION

13.1. The contract shall be governed and interpreted exclusively according to the Laws of England and Wales, without regard to its conflict of law principles.

13.2. Without prejudice to 13.3, the Company may at its sole discretion initiate proceedings in the courts of jurisdiction in which the Customer is domiciled to obtain any remedy, including injunctive relief, in the event of breach of the contract.

13.3. Any dispute arising between the parties in connection with the sale of Goods which is not amicably resolved pursuant to negotiations between the parties, including any question regarding the termination or amendment to these Terms and Conditions, shall be finally settled in accordance with the Rules of Arbitration (“Rules”) of the International Chamber of Commerce (“ICC”) by a sole arbitrator jointly appointed by the parties and conducted in the English language in Sri Lanka. The award rendered by the arbitrator shall be final and binding upon both parties.

13.4. No waiver of or delay or failure by the Company to exercise any rights or remedies shall prejudice or preclude any future or further exercise thereof.

13.5. In the event any of the Terms and Conditions shall be held to be invalid, illegal or unenforceable, the validity of the remaining provisions shall not be thereby affected and shall be given maximum effect consistently with the intention of the parties. Headings appear for convenience only and shall not affect the construction of these Terms and Conditions.

13.6. The Company reserves the right to revise the above Terms and Conditions of Sales time-to-time without giving prior notice to the Customers. The Customers are advised to review the Terms and Conditions of Sales whenever they acknowledge an Order Confirmation.