Terms and Conditions of Sale

KEY CONDITION:

BY PURCHASING RESIDUAL ASSETS THE PURCHASER ACKNOWLEDGES AND AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL ASSETS ARE PROVIDED STRICTLY ‘AS IS, WHERE LYING’AND ‘AS SEEN’ WITHOUT AGILITY OR THE MOD PROVIDING WARRANTIES, CONDITIONS, REPRESENTATIONS OR GUARANTIES OF ANY KIND, EITHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE. ALL IMPLIED WARRANTIES AND CONDITIONS UNDER THE SALE OF GOODS ACT 1979 (INCLUDING BUT NOT LIMITED TO SECTIONS 13, 14 AND 15) AND THE SUPPLY OF GOODS AND SERVICES ACT 1982, ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. THIS INCLUDES BUT IS NOT LIMITED TO ANY IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, TITLE,  FITNESS FOR A PARTICULAR PURPOSE OR CORRESPONDENCE WITH DESCRIPTION. NO ORAL ADVICE GIVEN BY AN AGILITY AUTHORISED REPRESENTATIVE SHALL CREATE A WARRANTY OUTSIDE WHAT IS PROVIDED HEREIN. AGILITY ACCEPTS NO RESPONSIBILITY FOR WARRANTIES FROM QUALIFIED THIRD PARTIES THAT ARE INCLUDED AS PART OF A SALE. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THE SALE AGREEMENT. THE PURCHASER UNDERTAKES TO DEFEND AND HOLD AGILITY HARMLESS FROM ANY AND ALL DEMANDS, SUITS, ACTIONS OR CLAIMS OF WHATSOEVER NATURE ARISING FROM OR OUT OF VIOLATION OF THIS KEY CONDITION.

BACKGROUND:

All Goods supplied by AGILITY under these Conditions of Sale are sourced from the MOD through MOD contracts, disposals or surplus inventory. The provisions in these Conditions of Sale reflect mandatory requirements and obligations under AGILITY’s contracts with the MOD.

1. DEFINITIONS AND INTERPRETATION

1.1 The following definitions and rules of interpretation apply in these Conditions of Sale.

1.2 AGILITY reserves the right to modify these Conditions of Sale at any time and any such modification shall become part of these Conditions of Sale. By participating in a sale, the Purchaser agrees to be bound by these Conditions of Sale.

1.3 A reference to a law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.  The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to and governed by English Law and the exclusive jurisdiction of the courts of England and Wales will apply.

1.4 Headings are for convenience only and shall not affect the interpretation of these Conditions of Sale.

Administrative Charge means a fee assessed on a purchase for the time and expense of processing the purchase. The charge will include costs for:

• The preparation and submission of export licences,
• Freight charges, where required.
• Insurance, where required.

AGILITY shall mean AGILITY DGS UK Limited, a company registered in England and Wales under company number 07028707 and whose registered office address is at The Blade, Abbey Street, Reading, England, RG1 3BD.

Business Days shall mean any day other than Saturday, Sunday or public holiday in England.

Conditions of Sale shall mean the clauses set out in these Conditions of Sale and any amendments thereto issued from time to time or which have been expressly agreed in writing and signed by a duly authorised officer of AGILITY.

Contract shall mean the legally binding agreement between AGILITY and the Purchaser  for the supply of the Goods and/or Services, compromising of the Contract Documents.  For auction sales, a contract is formed when the Purchaser’s bid is accepted by AGILITY, incorporating these Conditions of Sale.

Contract Documents shall mean and include the following documents, which in the event of any conflict or inconsistency between them, shall take priority in the following order: (a) these Conditions of Sale; (b) the Order Acknowledgement; (c) the Quotation; and (d) the Purchase Order.  

Contract Price shall mean the total amount shown on the Quotation that will include the agreed charges for the supply of the Goods and/or Services and all other related costs to be paid by the Purchaser.

Delivery Terms means Ex‐Works (EXW) at AGILITY’s place of business as specified in the Quotation, unless otherwise agreed  in writing.

Delivery Point Where the Purchaser opts for Delivery Terms other than EXW; the Delivery Point will be the place where delivery of the Goods is to take place under Clause 3 below and as indicated by the Purchaser in the Order Acknowledgement. Carriage charges will be paid by the Purchaser.

EAR shall mean the United States Export Administration Regulations.

End-User Undertaking shall mean a declaration for export control purposes signed by the Purchaser to guard against the risk of exports being diverted or re‐exported to ‘undesirable’ end‐users.

Force Majeure shall have the meaning as set out in Clause 13.

Goods means those items, materials, equipment, assets or products supplied by AGILITY to the Purchaser as specified in the Contract.

ITAR shall mean the United States International Traffic in Arms Regulations.

MOD means the United Kingdom Ministry of Defence.

Order Acknowledgement means AGILITY’s written form of acknowledgement of the Purchase Order and transmitted to the Purchaser or to such other address substituted therefore as the Purchaser may give by notice to AGILITY.

Parties means AGILITY and the Purchaser collectively and “Party” means either one of them.

Purchaser means the person, firm, legal entity, partnership or company who purchases the Goods from AGILITY and who is acting in the course of its trade, business or profession (not as a consumer).

Purchaser’s Agents means the Purchaser’s agents, couriers, servants, consultants and advisers.

Purchase Order means the Purchaser’s written instruction to AGILITY specifying the Goods and/or Services to be supplied and other associated terms and conditions agreed with AGILITY. When accepted and acknowledged by AGILITY it establishes a Contract that is binding on both Parties.

Quotation (also referred to as a Quote or Proposal) means AGILITY’s written offer to supply  Goods and/or Services specifying price, costs and terms. Quotations are not binding until a Purchase Order has been issued by the Purchaser and AGILITY issues and Order Acknowledgement. Quotations provided by AGILITY are subject to:

• Errors and Omissions Excepted (E&OE)
• Subject to Contract (STC)
• Subject to Prior Sale (STPS)

Services means any services (other than a supply of Goods) to be provided by AGILITY to the Purchaser as specified in the Contract. 

1. FORMATION OF CONTRACT

2.1 All Quotations are made and all Purchase Orders are accepted by AGILITY subject to these Conditions of Sale. The Purchaser’s instruction to proceed with the supply of Goods and/or Services and acceptance of a Purchase Order by AGILITY shall constitute agreement to these Conditions of Sale without recourse to other conditions or contractual terms purported to apply.

2.2 No modified or other conditions will be applicable unless they are expressly agreed in writing and signed by an authorised officer of AGILITY. Failure of AGILITY to object to any conditions or contractual terms contained in any Purchase Order or other communication from the Purchaser shall neither be construed as a waiver of the applicability of these Conditions of Sale nor an acceptance of such other conditions or contractual terms.

2.3 Quotations are provided in good faith. No Contract shall come into existence until AGILITY issues an Order Acknowledgement. A Quotation may be accepted by the Purchaser only within the validity period stated on the Quotation or, when no period is so stated, within ninety (90) days after its date of issue. AGILITY may withdraw or amend any Quotation at any time before issuing an Order Acknowledgement.

2.4 MOD Consignment. All Goods are held by AGILITY on consignment from the MOD. It is a condition of AGILITY’s agreement with the MOD that full payment must be received in cleared funds by AGILITY in advance before release of the Goods. The MOD has reserved the right to withdraw, recall or sell the Goods under its own terms and conditions at any time up to the point of despatch to the Purchaser. AGILITY has no control over any such recalls and shall have no liability to the Purchaser for any withdrawal or recall by the MOD. The Purchaser acknowledges that all sales are subject to MOD withdrawal rights and that AGILITY cannot guarantee availability of any Goods until despatch.

3. DESCRIPTION

3.1 The quantity, material condition and description of the Goods will be as set out in the Quotation.

3.2 All samples, drawings, descriptive matter, specifications and advertising issued by AGILITY and any descriptions or illustrations contained in AGILITY’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample or by description.

1. DELIVERY AND ACCEPTANCE

4.1 Unless otherwise agreed and shown on the Quotation, Delivery Terms to the Purchaser are Ex‐Works at AGILITY’s place of business located at Agility Disposals, Froghall Site, Froghall Road, Stoke on Trent, ST10 2HA, United Kingdom.

 4.2 Where the Purchaser requires delivery to be made using their own carrier and account number, the delivery shall be deemed to have taken place on collection by the carrier or agent. The Purchaser shall be responsible for Goods lost or damaged in transit and shall ensure adequate insurance cover is arranged or has opted not to insure.

4.3 The Purchaser shall take delivery within 5 days of AGILITY giving notice that the Goods are ready for collection by their Agent. If the Goods have not been collected within the 5‐day period, AGILITY will impose on the Purchaser an obligation to take delivery under section 12 of the Torts (Interference with Goods) Act 1977.

4.4  Removal of Goods and Storage Charges.

4.4.1 A schedule for the removal of the Goods will be specified for each sale. The Purchaser shall remove all items purchased within the time limit specified in the Contract or notification from AGILITY.

4.4.2 If, for any reason, removal cannot be completed within the specified time, the Purchaser shall arrange with AGILITY for an extension of time for removal. In the event that AGILITY, at its absolute discretion, agrees to an extension of the removal period to accommodate the Purchaser’s request, the liability and risk of loss or damage to the Goods shall transfer to the Purchaser as from the granting of extension.

4.4.3 Unless agreed otherwise, charges will be applied for property that is stored by AGILITY on behalf of the Purchaser beyond the removal deadline. Storage periods are calculated from the day following the expiry of the collection period and will be shown in calendar days or weeks; a week is Monday to Sunday:

(a) £5 per pallet or equivalent per week or part thereof for storage requested by the Purchaser and authorised by AGILITY.

(b) £10 per pallet or equivalent per week or part thereof for unauthorised storage.

4.4.4 The Purchaser is responsible for insuring, rigging, loading, securing and transporting purchased Goods, including all costs and risks associated with the removal. AGILITY may arrange for loading but will not guarantee a specific loading time. The Purchaser agrees to release and hold harmless AGILITY and its agents for any claims, damages or liabilities arising from any such “no cost” loading services.

4.5 Dates specified by AGILITY on the Quotation for the availability and delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.

4.6 Subject to the other provisions of these Conditions of Sale, AGILITY shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by AGILITY’s negligence), nor shall any delay entitle the Purchaser to terminate or rescind the Contract unless such delay exceeds 180 days.

4.7 AGILITY will not be liable if the Purchaser fails to accept delivery of any of the Goods when they are ready for delivery, or AGILITY is unable to deliver the Goods on time because the Purchaser has not provided appropriate instructions, documents, licences or authorisations. On these occasions:

4.7.1 Risk in the Goods shall pass to the Purchaser (including for loss or damage caused by AGILITY’s negligence) when (a) AGILITY has received full payment in cleared funds; (b) AGILITY has acquired full legal and beneficial title from the MOD; and (c) the Goods are ready for delivery, even if the Purchaser has not yet collected the Goods. This is subject to clause 8 which sets out the general rule for risk and title transfer.; and

4.7.2 AGILITY may store the Goods until delivery, whereupon the Purchaser shall be liable for all related costs and expenses (including, without limitation, for storage and insurance).

4.8 The Purchaser shall provide at the Delivery Point and at its own expense adequate and appropriate equipment and manual labour for off‐loading the Goods.

4.9 If AGILITY delivers to the Purchaser a quantity of Goods of up to 10% more or less than the quantity accepted by AGILITY on the order, the Purchaser shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or short fall and shall pay for such Goods at the pro rata Contract rate.

4.10 AGILITY may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.

4.11 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Purchaser to repudiate or cancel any other Contract or instalment.

4.12 The price shown on the Quotation includes free packing, handling and packaging materials. Goods will be packed to Commercial or Trade Pack standard and over packed for transit, where appropriate. Any special packaging requirements of the Purchaser will be charged at cost. The Purchaser should state their preferred method of delivery and provide the name of their nominated carrier and account number which they require the Goods to be shipped on. If the Purchaser requires Goods to be shipped on AGILITY’s freight account, there will be an additional charge to the Sales Invoice noted as ‘Freight Charge’.

4.12.1 AGILITY will accept no liability for damages in transit or short shipments where the Goods have been collected and transported by the Purchaser’s nominated carrier or on AGILITY’s carrier account. Such instances should be reported immediately to the carrier.

4.12.2 Where the Purchaser’s nominated carrier is unable to fulfil its obligations and AGILITY incurs costs transporting Goods on the Purchaser’s behalf, AGILITY shall invoice the Purchaser for reimbursement.

4.13 Acceptance

 4.13.1 The Purchaser shall be deemed to have accepted the Goods if they have not been rejected on or before the 7th calendar day after collection by the Purchaser’s Agent. The 7-day period is solely for verification of delivery, quantity and identity of Goods, and does not permit rejection based on condition, quality or fitness for purpose (which are excluded by the warranty disclaimers in Clause 12 and the KEY CONDITION to the fullest extent permitted by law). The Purchaser shall not be entitled to reject the Goods in whole or in part after such date and full payment shall be required.

 4.13.2 Should the Goods fail the Purchaser’s inspection within the 7 days, then a Notification of Quarantine (Returned Material Authority (RMA)) should be requested from AGILITY. Due recognition by the Purchaser is to be made of Clause 12.2 below.

 4.13.3 No Goods are to be returned for credit or refund to AGILITY without prior written consent from AGILITY’s Head of QHSE (Quality Health Safety & Environment).

 4.13.4 Exchanges and Returns must be returned in the original outer and inner packing. The original Copy of the Invoice or Pick List for Goods should be packed with the returned Goods. The RMA number is to be shown on the documents and on the exterior of the packing.

 4.13.5 On a case by case basis where AGILITY supplies an incorrect item or damaged item, freight charges incurred by the Purchaser may be reimbursed through the issue of a credit note for use on subsequent orders. Claims for Goods damaged in transit by the Purchaser’s carrier will not be accepted.

 4.13.6 Title to the Goods does not transfer until payment has been received in full and cleared and subject to Clause 8 below.

 4.13.8 Failure to comply with the Conditions in clause 4.13 above may result in refusal of refund or a 15% restocking fee.

 4.14 Cancellation

 4.14.1 No order which has been accepted by AGILITY may be cancelled by the Purchaser except with AGILITY’s written agreement. If AGILITY agrees to cancellation, the Purchaser shall indemnify AGILITY in full against all loss (including loss of profit), cost, (including the cost of all labour and materials used), damages, charges and expenses incurred by AGILITY as a result of cancellation.

 4.14.2 AGILITY reserves the right to cancel any sale or withdraw any or part of the Goods at any time prior to dispatch, including but not limited to (a) where the MOD exercises its withdrawal or recall rights under clause 2.4; (b) where MOD consent is required but not obtained under clause 15.1; (c) where export licences cannot be obtained; or (d) in AGILITY’s sole discretion for auction sales.  The Purchaser will be advised accordingly of any cancellation or withdrawal and any payments made will be refunded in full (less any costs already incurred by AGILITY).

1. PRICE

 5.1 The price for the Goods shall be the price set out in the Quotation, unless otherwise agreed by AGILITY in writing. The Contract Price, unless otherwise expressly stated, will be net, Ex‐Works and exclusive of VAT and does not include other Administrative Charges; such charges will be shown on the Quotation text notes or advised separately.

 5.2 The price for the Goods shown on the Quotation shall be exclusive of any local or governmental taxes and all such costs or charges in relation to specialist packaging, loading, unloading, carriage and insurance, unless agreed in writing. Such charges will be shown on the quotation and the Purchaser shall pay these in addition when it is due to pay for the Goods.

 5.3 The Purchaser shall pay to AGILITY any VAT in accordance with UK regulations arising from the supply of the Goods or Services. The Purchaser shall supply such documentation as required within the necessary time limits to ensure compliance with VAT and Customs regulations. AGILITY reserves the right to charge additional costs and VAT where this documentation or information is not provided or /and the nature of the transaction has changed.

1. NON‐DELIVERY

 6.1 The quantity recorded by AGILITY on dispatch from AGILITY’s place of business shall be conclusive evidence of the quantity received by the Purchaser on delivery, unless the Purchaser can provide conclusive evidence to the contrary.

 6.2 AGILITY shall not be liable for any non‐delivery of Goods (even if caused by AGILITY’s negligence) unless the Purchaser gives written notice to AGILITY of the non‐delivery within 7‐calendar days of the date when the Goods would in the ordinary course of events have been received.

 6.3 AGILITY’s liability for non‐delivery of the Goods shall be limited to, at AGILITY’s option: (a) replacing the Goods within a reasonable time; or (b) issuing a credit note at the pro rata Contract Price against any invoice raised for such Goods. AGILITY shall have no liability for any indirect or consequential loss, arising from non-delivery.

 6.4 AGILITY shall not be liable for any delay in delivery caused by the unavailability of the Purchaser at the delivery address or suspension or cancellation of transport services beyond the control of AGILITY or the performance of the Purchaser’s designated carrier.

7. PAYMENT

 7.1 Payment of the price for the Goods is due in the currency specified on the invoice and is to be made to AGILITY’s nominated bank account shown on the invoice or as otherwise advised. The exchange rate to be applied will be on the date the invoice is raised. Unless agreed in writing, payment by overseas (i.e., non‐UK based) Purchasers is to be by wire transfer and may be subject to an Administrative Charge to cover bank fees and currency conversion costs.

 7.2 Payment shall be made in advance of despatch of the Goods (Proforma invoice).

 7.3 No payment shall be deemed to have been received by AGILITY until funds have been received by AGILITY and cleared.

 7.4 All payments payable to AGILITY under the Contract shall become due immediately on its termination despite any other provision.

 7.5 The Purchaser shall make payments in full due under the Contract without any deduction by way of set‐off, counterclaim, discount, and abatement or otherwise unless the Purchaser has a valid court order requiring an amount equal to such deduction to be paid by AGILITY to the Purchaser.

 7.6 If the Purchaser fails to pay AGILITY any sum due in the performance of the Contract, the Purchaser shall be liable to pay all debt collection costs and interest charges accrued. Interest will be charged at the annual rate of 4% above the base lending rate published by the Bank of England , accruing on a daily basis until payment is made, whether before or after any judgment. AGILITY reserves the right to claim interest under the UK Late Payment of Commercial Debts (Interest) Act 1998.

 7.7 Purchases made through the United Kingdom require payment by BACS or company cheque from companies within the UK, and Wire Transfer for companies outside the UK. All payments must be received in GB Pounds Sterling. Banking fees and exchange differences are at the Purchaser’s expense. Cash payments are not accepted.

 7.8 VAT at the current rate will be added to the purchase price. Purchasers who are located outside of the United Kingdom and non-UK Purchasers who include their valid VAT number at the time of registration will not be charged UK VAT, subject to compliance with applicable VAT and customs regulations.

 7.9 To prove indemnity from VAT charges and to fulfil requirements with the UK Customs and Excise Authority, AGILITY requires a copy of the airway bill or bill of lading to be provided after export.

 7.10 If proof of export is not provided VAT at the prevailing rate will be charged and an additional invoice will be raised to recover this amount.

 7.11 If the Purchaser fails to pay the full purchase price within the time specified, AGILITY may, upon written notice, at its absolute discretion resell items that are not paid for. The Purchaser will be invoiced with 25% of the outstanding purchase price (or minimum 100 GBP) as liquidated damages for breach of contract. Furthermore AGILITY may at its absolute discretion suspend the Purchaser from further activities on the website. In such cases the Purchaser will be notified.

7.12 A sale is considered completed when the items have been paid for in full AND when the property has been collected by the Purchaser or Purchaser’s representative.

7.13 Property, which is still in storage and for which arrangements for continued storage or removal by the Purchaser have not been made, will not be considered a completed sale.

7.14 Property stored beyond the removal deadline will be charged at the rate advised in clause 4.4.3.

7.18 Taxes. The Purchaser shall be liable for all taxes arising from the purchase of items from AGILITY. 

1. RISK/TITLE

 8.1 Transfer of Risk and Title.

(a) Risk and title in the Goods shall pass to the Purchaser concurrently only when all of the following conditions are satisfied simultaneously: (i) AGILITY has received in full (in cash or cleared funds) all sums due in respect of the Goods and all other sums due from the Purchaser on any account; (ii) AGILITY has acquired full legal and beneficial title to the Goods from the MOD; and (iii) the Purchaser has collected the Goods or taken delivery.

(b) Exception for Purchaser Default: Where the Purchaser fails to collect the Goods when ready for collection or fails to provide delivery instructions as required under clause 4.6, risk (but not title) shall pass to the Purchaser when conditions (i) and (ii) in clause 8.1(a) above are satisfied and the Goods are ready for collection, even if the Purchaser has not yet collected them.

8.2  Until title passes under Clause 8.1, the Goods remain AGILITY’s and/or the MOD’s property. AGILITY may recover the Goods at any time if title has not passed. The Purchaser grants AGILITY an irrevocable right to enter any premises to inspect or recover the Goods.

1. TERMINATION

9.1 Without limiting its other rights or remedies, AGILITY may terminate the Contract with immediate effect by giving written notice to the Purchaser if:

(a)        the Purchaser fails to pay any amount due under the Contract on the due date for payment;

(b)        the Purchaser commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of it being notified in writing to do so;

(c)        the Purchaser takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(d)        the Purchaser suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or

(e)        the Purchaser’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

9.2       Termination of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination.

9.3       Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.

1. ASSIGNMENT

10.1 AGILITY may at any time assign, transfer, delegate, novate, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract or any part of it to any person, firm or company.

10.2 The Purchaser shall not be entitled to assign, transfer, delegate, novate, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract or any part of it without the prior written consent of AGILITY.

11. LIMITATION OF LIABILITY

 11.1 Nothing in this Contract excludes or limits the liability of AGILITY for:

 11.1.1 death or personal injury caused by AGILITY’s negligence; or

11.1.2 any matter which it would be illegal for AGILITY to exclude or attempt to exclude its     liability; or

 11.1.3 for fraud or fraudulent misrepresentation.

 11.2 Subject to Clause 11.1:

11.2.1 AGILITY’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract Price and;

11.2.2 AGILITY shall not be liable to the Purchaser for any loss of profit, loss of sale or business, loss of agreements or contracts, loss or depletion of goodwill and any indirect or consequential loss.

11.3 The Purchaser shall indemnify, defend, and hold harmless AGILITY, the MOD and their respective directors, officers, employees, agents and subcontractors from and against any and all claims, demands, actions, suits, proceedings, losses, damages, liabilities, penalties, fines, costs and expenses (including legal fees) arising from or in connection with:

(a) the Purchaser’s purchase, possession, use, operation, handling, storage, transportation, modification, repair, onward sale or disposal of the Goods;

(b) any breach by the Purchaser of these Conditions of Sale, including but not limited to the export control obligations set out in clause 14 and the MOD-related obligations set out in clause 15;

(c) any claims by third parties arising from the Purchaser’s use or onward supply of the Goods;

(d) any misrepresentation by the Purchaser; and

(e) any breach of applicable laws or regulations by the Purchaser.

This indemnity shall survive termination of the Contract.

12. WARRANTY

12.1 Where AGILITY is not the manufacturer of the Goods, AGILITY shall endeavour to transfer to the Purchaser the benefit of any warranty or guarantee given to AGILITY by the manufacturer or supplier, if transferable.

12.2  Save as provided in clause 12.1, the Purchaser acknowledges and agrees that all Goods are sold strictly on an “ as is, where lying and as seen” basis without any warranties to the fullest extent permitted by law, as set out in the Key Condition at the beginning of these Conditions. The Key Condition shall apply to all sales and purchases.

13. FORCE MAJEURE

 13.1 AGILITY shall not be liable for any delay or failure in the performance of its obligations under the Contract, if it is prevented from or delayed in the carrying on of its business due to circumstances beyond its reasonable control, including and without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock‐outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.

 13.2 If the Force Majeure event continues for a continuous period in excess of 60 days, the Contract may be cancelled in writing by either Party.

14. EXPORT CONTROL

14.1 Where the Goods to be supplied are for export from the United Kingdom, or for export, re-export, transfer or re-transfer under any applicable export control or sanctions laws regulations of any other jurisdiction, the provisions of this Clause 14 shall (subject to any special terms agreed in writing between AGILITY and Purchaser) apply, notwithstanding any other provision of these Conditions of Sale.

 14.2 Export Compliance Obligations. The Purchaser shall be responsible for complying with all legislation and regulations covering the export, re-export, transfer or re-transfer of the Goods, including ensuring all necessary export licences, authorisations and consents are obtained and in place before export.  The Purchaser shall comply with all applicable export control laws and sanctions regulations of the United Kingdom, United States, European Union, United Nations and any other applicable jurisdiction. The Purchaser shall provide evidence of compliance to AGILITY on demand. The Purchaser shall indemnify, defend and hold harmless both AGILITY and the MOD against any and all claims, losses, damages, penalties, fines, costs and expenses (including legal fees) arising from any breach by the Purchaser of this clause 14.2 or any applicable export control or sanctions laws. Failure to comply shall not entitle the Purchaser to withhold or delay payment, and any additional expenses or charges incurred by AGILITY from such failure shall be recoverable from the Purchaser.

14.3 Licence Application Process. AGILITY may, at the Purchaser’s request and expense, make arrangements to apply for export licences on the Purchaser’s behalf . The Purchaser shall provide accurate and complete information as requested by AGILITY in reasonable time to enable licence applications. Goods will not be released to the Purchaser until all mandatory export requirements have been met and supporting documents have been provided to the satisfaction of AGILITY. The charges to be applied will be set out in the Quotation or otherwise notified to the Purchaser. The Purchaser ultimately remains responsible for export compliance. AGILITY shall have no obligation to apply for a licence if AGILITY determines that any requisite licence cannot be obtained or will not be granted by the applicable authority, nor shall AGILITY have any obligation to complete the sale or deliver Goods if a licence application is denied or delayed.

 14.4 Legal Notice – End-Use Restrictions. The Purchaser is required to comply fully with all laws and regulations concerning the purchase and sale of Goods and/or Services. The Purchaser is required to comply with the International Traffic in Arms Regulations (ITAR) and Export Administration Regulations (EAR) and any applicable laws and regulations of any other applicable jurisdiction in connection with goods, services, technology, software and technical data subject thereto. The Purchaser is required to confirm that the Goods and any related goods, services, technology, software and technical data to be conveyed under the Contract are not and will not be intended, in their entirety or in part, for use in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological, radiological or nuclear weapons, or other nuclear explosive devices or the development, production, maintenance or storage of missiles capable of delivering such weapons. An End-User Undertaking will be required to be completed by the Purchaser.  AGILITY reserves the right to require more than one End-User Undertaking if the transaction is subject to the export control or sanctions laws of more than one jurisdiction.

 14.5 Security Measures. The Purchaser undertakes to implement all necessary security measures to prevent the transfer or diversion by any means whatsoever, of the Goods, Services or information provided by AGILITY and identified as being subject to the applicable laws and regulations on export control to any person not authorised to access such Goods, Services and information, by dispensation or by an export or import licence granted by the competent government authorities.

14.6 Prohibited Destinations and Sanctions. AGILITY does not sell Goods to countries, individuals, entities or end-users subject to applicable sanctions, embargoes, trade controls or other restrictions. The Purchaser warrants that it shall not export, re-export, transfer, sell or otherwise supply the Goods (or any products incorporating the Goods) to any such restricted countries, individuals, entities or end-users. The Purchaser shall not supply Goods to any military end-users, government entities or destinations that AGILITY or the MOD reasonably considers sensitive, contentious or high-risk without prior written consent from both AGILITY and the MOD. An End-User Undertaking will be required. The Purchaser shall indemnify AGILITY and the MOD for any breach of this clause 14.6.

15. PURCHASER OBLIGATIONS RELATING TO MOD GOODS

15.1 MOD Consent. The Purchaser acknowledges that certain sales may require prior written consent from the MOD before completion. Such consent may be required where: (a) the sale price is below a minimum threshold specified by the MOD; (b) the end-user, destination or intended use is considered sensitive, contentious or high-risk; (c) the Goods are of a specialist, sensitive or controlled nature; or (d) the MOD otherwise requires consent under AGILITY’s contract with the MOD. AGILITY reserves the right to delay delivery, suspend or cancel any sale pending MOD consent. The Purchaser shall provide all information reasonably requested by AGILITY or the MOD to facilitate the consent process. AGILITY shall have no liability for any delay or cancellation resulting from MOD consent requirements.

15.2 Removal of MOD Markings and Sensitive Equipment. Where Goods bear military markings, insignia, MOD identification, classified equipment labels, or contain sensitive components or equipment, the Purchaser shall: (a) remove or cause to be removed all such markings, insignia, identification, labels and sensitive equipment/components prior to any use, display, onward sale or transfer of the Goods, unless AGILITY has already completed such removal; (b) ensure removed markings and sensitive components are disposed of securely and lawfully; (c) not represent the Goods as being endorsed by, affiliated with, or approved by the MOD or UK Government; and (d) indemnify AGILITY and the MOD against any claims arising from failure to comply. AGILITY will notify the Purchaser in lot descriptions and invoices if markings or sensitive equipment require removal by the Purchaser.

15.3 Environmental Obligations and Disposal. The Purchaser acknowledges that Goods may contain hazardous materials, substances or components subject to environmental regulations (including but not limited to asbestos, petroleum products, ozone depleting substances, heavy metals, radioactive materials, or other controlled substances). The Purchaser shall: (a) be solely responsible for lawful handling, storage, use, treatment and disposal of the Goods in compliance with all applicable environmental laws and requirements; (b) obtain all necessary permits, licenses and authorisations for disposal or treatment of hazardous materials; (c) engage qualified and licensed contractors for disposal of hazardous materials where required by law; (d) indemnify, defend and hold harmless AGILITY and the MOD against any and all environmental claims, liabilities, penalties, fines, remediation costs, and expenses (including legal fees) arising from the Purchaser’s handling, use or disposal of the Goods; and (e) comply with all waste management, pollution control and environmental protection legislation. AGILITY makes no representation regarding the environmental status of the Goods and provides them strictly ‘as is’ in accordance with the KEY CONDITION and Clause 12.2.

15.4. Counterfeit Prevention and Traceability. The Purchaser warrants and undertakes that: (a) it shall not introduce counterfeit, fraudulent, suspect or non-conforming goods into the supply chain; (b) where Goods include aircraft components, airworthiness-critical parts, or specialist spares, the Purchaser shall maintain full traceability records including certificates of conformity, maintenance records, and chain of custody documentation; (c) the Purchaser shall cooperate fully with any traceability or investigation requests from AGILITY, the MOD, or relevant regulatory authorities (including the Civil Aviation Authority and military airworthiness authorities); (d) the Purchaser shall retain all transaction and traceability records for a minimum of ten (10) years from purchase; (e) the Purchaser shall permit AGILITY and the MOD to audit such records upon reasonable notice; and (f) the Purchaser shall immediately notify AGILITY and the MOD if it becomes aware of any counterfeit, suspect or non-conforming items. The Purchaser shall indemnify AGILITY and the MOD against any losses arising from breach of this Clause 15.4.

15.5 Confidentiality and Publicity Restrictions. The Purchaser shall: (a) keep strictly confidential all information relating to the Goods and/or Services, the MOD, AGILITY’s relationship with the MOD, and any information marked as confidential or which is by its nature confidential; (b) not make any press release, public announcement, advertisement, promotional material, or other publicity concerning the MOD, the MOD’s disposal of assets, AGILITY’s contract with the MOD, or the Purchaser’s purchase of the Goods without prior written consent from both AGILITY and the MOD; (c) not use the name, logo, insignia or trademarks of the MOD, the UK Government, or any military service or unit in any publicity or marketing materials without prior written consent; (d) not represent that the Goods are endorsed by, approved by, or affiliated with the MOD or UK Government; and (e) indemnify AGILITY and the MOD against any losses arising from unauthorised publicity or disclosure. This obligation survives termination of the Contract.

15.6. Audit Rights and Records Retention. Where Goods include aircraft components, airworthiness-critical parts, specialist spares, controlled items, or other assets designated by AGILITY or the MOD as requiring enhanced traceability, the Purchaser shall: (a) maintain complete and accurate records of all transactions, including purchase documentation, invoices, delivery records, onward sales records, export documentation, end-user information, and traceability documentation; (b) retain such records for a minimum of ten (10) years from purchase, or such longer period as required by applicable aviation, defence, export control or other regulatory requirements; (c) permit AGILITY, the MOD, and their respective authorised representatives (including regulatory authorities) to inspect, audit and copy such records upon reasonable written notice during normal business hours; (d) cooperate fully with any audit or investigation and provide all information and assistance reasonably requested; and (e) ensure any onward purchasers or transferees are subject to equivalent record-keeping and audit obligations. AGILITY will notify the Purchaser at the time of sale if specific assets are subject to these enhanced record-keeping requirements.

15.7 Specialist Goods – Aircraft, Safety Equipment, Electrical/Electronic Equipment

15.7.1 The Purchaser acknowledges that aircraft components offered for sale may not be certified by the relevant regulatory authorities for use on civil registered aircraft. The Purchaser undertakes that such components will not be offered for onward sale or sold for use on civil registered aircraft unless appropriate certification is obtained from the relevant regulatory authorities, and such components will not be installed on a civil registered aircraft except by a properly certified technician. The Purchaser shall indemnify AGILITY against any demands, suits, actions or claims arising from any breach of this undertaking.

15.7.2 Safety equipment offered for sale may not be free from defect or may lack current certification for its intended purpose. The Purchaser undertakes to obtain any necessary repairs or re-certification before using such equipment or before selling it as usable equipment.

15.7.3 Electrical and electronic equipment offered for sale may not have been tested by AGILITY and should not be used without professional testing to ensure safe operation, unless specifically stated otherwise. The Purchaser shall ensure that such equipment is only purchased by qualified traders or those competent to test electrical/electronic equipment for safe use and shall not use such equipment unless professionally tested and certified as safe.

16. GENERAL

16.1 Each right or remedy of AGILITY under the Contract is without prejudice to any other right or remedy of AGILITY whether under the Contract or not.

16.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, enforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.

16.3 Failure or delay by AGILITY in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.

16.4 Any waiver by AGILITY of any breach of, or any default under, any provision of the Contract by the Purchaser shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.

16.5 The Parties to the Contract do not intend that any condition of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.

16.6 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties submit to the exclusive jurisdiction of the English courts.

16.7      Communications and Notices. All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by email to the addresses notified by each party:

16.7.1 to AGILITY registered office or such changed address as shall be notified to the Purchaser by AGILITY; or

16.7.2 to the Purchaser’s registered office of the addressee (if it is a company) or (in any other case) to any address of the Purchaser set out in any document which forms part of the Contract or such other address as shall be notified to AGILITY by the Purchaser.

 16.8 Communications shall be deemed to have been received:

 16.8.1 if sent by pre‐paid first class post, two Business Days after posting (exclusive of the day of posting); or

            16.8.2 if delivered by hand, on the day of delivery; or

 16.8.3 if sent by email to the email address notified by the recipient, on the day of transmission if sent on a working day prior to 4.00 PM (GMT), and otherwise on the next working day.

16.9  Communications addressed to AGILITY shall be marked for the attention of the General Manager.

17. SPECIFIC CONDITIONS FOR AUCTIONS OR SEALED BID TENDER

17.1 Clause 1-16 of these Conditions of Sale apply to all sales including auction sales and sealed bid tender, to the extent applicable. This clause 17 sets out additional terms and specific variations that apply to auction sales and sealed bid tenders. To the extent of any conflict between this clause 17 and the rest of the Conditions of Sale, this clause 17 shall prevail where the Goods are sold via auction or sealed bid tender.

17.2 If you violate these Conditions of Sale or, in the sole discretion of AGILITY suspects you intend to violate these Conditions of Sale, AGILITY may terminate your use of the auction site, bar you from future use of the site, cancel your order, terminate or refuse to allow your participation in any auction, or take appropriate legal action against you. An order or bid may be rejected, cancelled or disqualified, or may otherwise not be accepted, if AGILITY determines in AGILITY’s sole discretion that AGILITY has not received sufficient approval, authorisation or verification of a bidder’s credentials or that a bidder has not complied with these Conditions of Sale, AGILITY’s other agreements or policies, or any other auction rules. Such a rejection, cancellation or disqualification may occur either during an auction or after the closing of an auction. Consequently, if your bid is disqualified you will not be successful through an auction even if your bid is high enough to have won.

17.3 AGILITY cannot guarantee that its system for placing, receiving, collecting and tabulating bids over the Internet will be available without interruption, free from errors or other defects. AGILITY will not be liable with respect to any claim or allegation that a prospective Purchaser’s bid was not received, properly or effectively processed, or accepted due to technical errors or problems with the auction.

17.4 Sealed Bid Sales. Unless otherwise stated, sealed bids have to be sent electronically via the AGILITY Website. AGILITY accepts no liability for bids regardless of origin that are either not received, illegible, not accepted or not processed due to technical difficulties. Sealed bids will only be accepted if received prior to the closing date and time for the specific Lot tendered, and once submitted may not be cancelled, withdrawn or amended, but may be increased. Agility reserves the right to accept and receive untimely bids at its sole discretion.

 17.5 Bid Retractions. No adjustment will be made to the winning bid due to any error in the bidding process, or any other discrepancy regarding description, condition, quantity, estimated weight or other factors that may influence the final bid price of a Lot. You understand and acknowledge that you cannot revoke or otherwise cancel any bid that you make, but you may use the re-bid function to increase your bid.

17.6 Lot(s) included are to be sold on a competitive basis and on an “As seen and as and where lying” basis. AGILITY does not give any warranty, written or implied as to the condition or reliability of any of the lots offered. Prospective purchasers should satisfy themselves as to the condition of each item offered. The goods are offered with all faults, imperfections and with all error or mis-statements of description, measurement, weight, quantity, quality, number or otherwise (whether of a substantial nature or not). Statements made orally or printed are merely matters of opinion, not fact, and therefore the Purchaser shall have no claim against AGILITY or return the goods in respect of any such faults, errors or mis-statements.

17.7 The Purchaser hereby warrants and represents that they are legally able to enter into and form a binding contract by the placing of a bid.   When you offer a bid, you are agreeing to purchase the item at that price if you remain the highest bidder.

17.8 The Purchaser acknowledges and agrees that all decisions by AGILITY with respect to determining auction winners shall be final and binding.

17.9 Product Information. Information provided by AGILITY is not guaranteed and should not be considered as a substitute for the prospective Purchaser’s due diligence in physically inspecting the Goods. The exact condition of the Goods for sale is not known to AGILITY and prospective Purchasers should therefore note that the information and descriptions listed in advertising material for specific sales are merely for the general identification of the Goods and do not represent any characteristics in terms of lawful purchasing. AGILITY accepts no responsibility nor makes any warranties regarding the contents of a sale. Information in the Lot and Items descriptions are provided to assist prospective Purchasers, but the accuracy of this information is not guaranteed. It remains the prospective Purchaser’s responsibility to verify the information provided, including but not limited to item description, condition, quantity, estimated weight or other factors that determine the bid price.

17.10 Where AGILITY provides the Purchaser with a translation of information and descriptions, AGILITY herewith excludes any and all liability for or in connection with the accuracy or completeness of the translation.

17.11 Description. The quantity and description of the Goods shall be as set out in the Lot Information on the auction website.

17.12 AGILITY at its absolute discretion reserves the right to determine the method of conducting the sale. Notices from AGILITY may be transmitted by e-mail, letter or telephone to the postal address, e-mail address and telephone numbers provided by the prospective Purchaser during registration.

17.13 All potential bidders are advised to read the information provided in the lot information and the procedures included in these Conditions of Sale, and to inspect the Goods before bids are submitted. There are no warranties, either expressed or implied, and no returns, exchanges or refunds. All Goods will be displayed for on-site viewing. Agility is under no obligation to solicit specific bidders unless otherwise agreed and is not liable for its failure to solicit a specific bidder.

17.14 Removal of Goods and storage charges for auction sales shall be as set out in clause 4.4 of these Conditions of Sale. For auction sales, the Purchaser’s obligations regarding insuring, rigging, loading, securing, transporting, and risk, including AGILITY’s “no cost” loading services and associated hold harmless indemnity, shall apply as set out in clause 4.4.4.

17.15 The Purchaser, or his authorised agent, shall be responsible for inspecting and counting the Goods at the time of removal. After this time, claims related to any information provided by the Lot description or Item description will not be accepted.

 17.16 Shipping and Delivery is not included in the bid price. It is optional and if it is required the Purchaser is required to pay for it in addition to the purchase price for the Goods. AGILITY shall arrange for delivery with the Purchaser on successful notification of a successful bid.

17.17 The Purchaser shall take delivery of the Goods within 10-Business Days of AGILITY giving it notice that the Goods are ready for delivery. Thereafter, storage costs shall be charged to the Purchaser in accordance with Clause 4.4.3 above.

17.18 Any dates specified by AGILITY for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.

17.19 Subject to the other provisions of these Conditions of Sale, AGILITY shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by AGILITY’s negligence), nor shall any delay entitle the Purchaser to terminate or rescind the Contract unless such delay exceeds 180-calendar days.

17.20 If for any reason the Purchaser fails to accept delivery of any of the Goods when they are ready for delivery, or AGILITY is unable to deliver the Goods on time because the Purchaser has not provided appropriate instructions, documents, licences or authorisations: risk in the Goods shall pass to the Purchaser (including for loss or damage caused by AGILITY’s negligence); the Goods shall be deemed to have been delivered; and AGILITY may store the Goods until delivery, whereupon the Purchaser shall be liable for all related costs and expenses (including, without limitation, storage and insurance) as set out in clause 4.4.3.

17.21 Information on packing and shipping services available on the AGILITY website is advisory only, and the Purchaser shall hold AGILITY harmless from all or any claims, actions, and liabilities for damages (including consequential damages and loss of use), arising from the Purchaser’s selection and use of such packing and shipping services.

17.22 Auction Disputes

17.22.1 All disputes must be submitted to AGILITY in writing and must include the sales event number, the lot number(s), the customer user ID and the invoice number, along with a narrative describing the basis for the dispute. Disputes must be received by the AGILITY Customer Helpdesk within 5-Business Days after collection of the Goods. Claims related to property condition, minor count discrepancies or Purchaser’s failure to inspect the Goods prior to bidding/removal will not be accepted.

17.22.2 All business transacted between a Purchaser and AGILITY and any dispute or action arising from the application of these Conditions of Sale shall be exclusively governed by and in accordance with the law of England without regard to conflict of laws, provisions as well as the United Nations Convention on the International Sale of Goods. The English Courts will have exclusive jurisdiction to deal with any disputes arising.