TERMS AND CONDITIONS
1. General
These Conditions of Trade (“the Conditions”) supplied by us (“the Company”)to a purchaser (“the Buyer”) shall be incorporated into each contract (“the Contract”) made by the Company for the sale of the Company’s goods (“the Goods”) and for the supply of any services which the Company has expressly agreed to provide (“the Services”). The Company contracts as aforesaid upon such terms as are agreed between the Company and the Buyer upon the standard terms and conditions of trade of the Company and upon the terms of the Conditions alone. If any provisions of the standard terms and conditions of the Company at any time conflict with any terms of the Conditions the terms of the Conditions shall prevail. No conditions or terms of the Buyer shall apply to this contract. No variation of any of the Conditions shall be effective unless in writing and signed by a duly authorised representative of the Company.
2. Quotations and Acceptance of Orders
a) The Contract shall become binding only upon the confirmation of acceptance of any order by the Company in writing and accordingly all quotations or tenders made and price or product lists supplied by the Company shall be treated as invitations to treat only
b) Subject to Clause 5(b) any quotation by the Company remains open for acceptance for 30 days from the date on which the Company sends the quotation to the Buyer unless the quotation specifically refers to an alternative period during which the quotation shall remain valid. If no quotation is rendered the price set out in the Company’s price list which is in force on the date the Goods are delivered and/or the Services supplied shall apply, with any discounts granted by the Company.
c) The placing of an order by the Buyer shall be conclusive evidence that the Buyer having checked the quotation is fully satisfied that the quotation is in accordance with its requirements.
3. Specifications
a) If goods and/or Services are supplied in accordance with the Buyer’s specifications (“the Specifications”) the Buyer shall be solely responsible for the Specifications and ensuring that they are accurate.
b) The Buyer shall be responsible for supplying the Specifications within a sufficient time to enable the Company to perform the Contract in accordance with its terms..
c) The specifications and designs of the Company which without prejudice to the generality of the foregoing shall include illustrations, drawings, weights and dimensions are, unless expressly stated otherwise, subject to modification or improvement and must be regarded as approximate representations only and are not binding in detail unless expressly stated to be so and such title and copyright in the specifications submitted by the Company shall remain vested in the Company.
d) The buyer agrees that it shall not disseminate or disclose to any third party any of the information relating to the Company’s specifications without the prior written consent of the Company or the party in whom title and copyright in the specifications is vested.
4. Packaging
Packaging for the goods shall be at the discretion of the Company which shall have the right to pack the Goods in such manner and with such materials and in such quantities as it in its absolute discretion thinks fit unless detailed packaging instructions are received from the Buyer and agreed in writing by the Company prior to agreeing a price for the Goods.
5. Price
a) All prices shall be as stated by the Company.
b) All prices stated shall be subject to variation at the sole discretion of the Company at any time without prior notice and the Company shall notify the Buyer of any variation before delivery of the Goods and/or the supply of the Services.
c) All prices do not include any works or other services that are not specified in the Schedule overleaf. Any works or other services not specified in the Schedule overleaf and required to perform the Contract shall be paid for by the Buyer within thirty days after the receipt by the Buyer of the Company’s invoice therefor.
6. Payment
a) Liability for payment for the goods supplied shall arise on delivery of the Goods and liability for payment for the Services supplied shall arise on the completion of the Services and payment in cash is due without abatement deduction or setoff thirty days from the date of the Company’s invoice overleaf or specifically agreed in writing by the Company. Payment shall be due and the Company shall be entitled to sue for the price whether or not property in the Goods has passed by virtue of Clause 10.
b) Sums unpaid after the due date shall bear interest until the day payment is received at the rate of 1.5% per month occurring from day to day from the date that payment was due until the date of payment in full.
c) Without prejudice to any other rights or remedies of the Company any default of the Buyer in making payment on the due date shall entitle the Company to suspend deliveries of Goods and/or the provision of Services under the Contract or any other contract so long as the default continue and to treat the Contract as repudiated by the Buyer and determined if the Buyer has not within fourteen days of receiving written notice from the Company paid all sums due to the Company.
7. Delivery
a) Delivery shall take place when the Goods are unloaded at or delivered to the Buyer’s premises or other delivery location agreed between the Company and the Buyer except that if the Buyer collects or arranges collection of the Goods from the Company’s premises or nominates a carrier for the Goods delivery shall take place when the Goods are loaded on to the collection or carrier’s vehicle.
b) Time for delivery of goods and completion of the services shall not be of the essence unless previously agreed by a director of the Company in writing. The Company will use its best endeavours to complete delivery of the Goods and/or to complete the supply of Services on or before any dates requested by the Buyer or estimated by the Company but will not be liable for any delay in delivery of the Goods and/or completion of the Services.
c) The Buyer shall accept immediate delivery or arrange to collect the Goods or arrange suitable storage failing which the Company may either
(i) effect delivery by whatever means it thinks most appropriate OR
(II) arrange storage at the buyer’s risk and expense pending delivery OR
(III) re-sell or otherwise dispose of the goods without prejudice to any other rights the company may have against the buyer for breach of contract or otherwise.
d) Where the Contract provides for delivery of the Goods and/or completion of the Services by instalments each instalment shall constitute a separate contract and failure or defect in any one or more instalments which have been delivered or as the case may be completed shall not entitle the Buyer to repudiate the Contract nor cancel any subsequent instalments.
e) The Buyer shall not be entitled to reject the Goods by reason only of short delivery. The quantity of the Goods delivered under the Contract shall be recorded by the Company upon despatch from the Company’s factory or warehouse and the Company’s record shall be accepted by the Buyer as conclusive evidence of the quantity delivered.
g) It is the Buyer’s responsibility to notify the Company if the Goods have not been received by the Buyer within seven days of the date of receipt of the Company’s invoice thereafter. If no notification is made the Buyer shall be deemed to have received the Goods.
8. Examination and Claims
a) The Buyer shall upon delivery examine the Goods and shall promptly (but in any event within seven working days of delivery) notify in writing the Company and carrier, where relevant of any apparent damage defect or shortage.
b) The Buyer shall comply with the carriers rules regulations and requirements so as when appropriate, to enable the Company to make a claim against the carrier in respect of any damage or loss in transit.
c) Claims in respect of damage defects or shortage not apparent on examination under (a) must be notified in writing to the Company within twenty-one days of the date of delivery.
d) Notification under (a) and (c) above shall be first made by telephone then by notice in writing delivered by telex facsimile or by first class recorded delivery mail and addressed to the Company at the address specified in the Schedule overleaf. In default of such notification the Company shall subject to any claim which the buyer may have under the Guarantee and Warranty referred to in Clause 9, be deemed conclusively to have properly performed its obligations under the Contract.
9. Guarantee and Warranty
a) The goods and the Services are subject to the guarantee (“The Guarantee”) if any, submitted by the Company in writing to the Buyer which has been agreed as appropriate and fair.
b) Save as referred to in (a) above the Company warrants only (“the Warranty”) that the Goods are reasonably free from defect in design (other than a design submitted or specified by the Buyer) in material or workmanship for twelve months from the date of delivery of the Goods or completion of the Services as the case may be (“the Warranty Period”) provided always that in respect of goods, materials, parts of components supplied but not manufactured by the Company the Warranty will be equivalent to the Warranty (if any) which the Company may have received from the manufacturer or supplier of such goods, materials, parts or components but not so as to impose a liability greater than that imposed on the Company by the aforesaid Warranty Period and provided that the buyer has given the Company written notice and satisfactory proof of any defect promptly upon discovery of such defect but in no case later than seven days after expiry of the Warranty Period.
c) The Company’s obligations to the Buyer under the Warranty and the Guarantee shall not apply:
(i) To damage caused by the Buyer’s or any third party ‘s act, default or misuse of the Goods or by failure to follow any instructions supplied with the Goods and /or in connection with the Services.
(ii) If the Goods have been stored, handled or applied in such a way that damage is likely to occur.
(iii) If the Goods are altered, modified or repaired in any place other than the Company’s factory or by persons not expressly nominated or approved in writing by the Company.
(iv) If the Buyer shall not have paid by the due date for payment for all Goods and/or Services supplied whether under the Contract or under any other contract between the Company and the Buyer.
(v) In respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer.
d) Subject as expressly provided in these conditions, and except where the goods are sold and/or Services are supplied to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977) all warranties conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
e) Subject to c) above, the Company shall at its sole option repair or replace the Goods or refund the purchase price for the Goods and/or Services found to be defective in design materials or workmanship.
f) Save for liability for death or personal injury arising from the Company’s negligence and for liability arising under the consumer Protection Act 1987 (which if proved is not excluded) the Company’s obligation to repair refund or replace as aforesaid shall constitute the full extent of the Company’s liability in respect of any loss or damage sustained by the Buyer whether caused by any breach of the Contract or by misrepresentation or by the negligence of the Company, its employees or agents or arising from any other cause whatsoever and the Company shall not be liable for any consequential, economic, direct or indirect loss suffered by the Buyer or arising therefrom.
g) The cost to the Company of and incidental to the return by the Buyer to the Company of any of the Goods delivered hereunder shall, except to the extent that the Company has accepted responsibility hereunder be the responsibility of the Buyer who shall indemnify the Company against any such costs including, but without limitation to the generality of the foregoing, costs of transport and testing or any other cost or loss to the Company arising therefrom.
h) Notwithstanding sub-clause (f) above the Buyer shall, except where he is a person who suffers personal injury or death or loss or damage to property such as to give rise to a claim under the Consumer Protection Act 1987, Indemnify the Company against all loss, damage, liability, legal fees and costs arising from any such claim made against the Company under the Consumer Protection Act 1987.
10. Property and Risk
a) Risk shall pass to the Buyer at the time of delivery in accordance with Clause 7 of the Conditions and the Goods should be insured accordingly.
b) (i) Property (both legal and beneficial) in the Goods shall remain in the Company until all sums owing to the Company whether under the Contract or any other contract between the company and the Buyer made prior to the date of the Contract (“the Indebtedness”) shall have been paid in full. Until such time the Buyer shall hold the Goods as bailee for the Company.
(ii) The Buyer until otherwise notified by the Company or on the happening of any of the events specified in (iv) (“the events”) may in the ordinary course of the business sell the Goods and pass property in them (“the Resale”) subject to the stipulations (“the Stipulations”) imposed in (iii)
(iii) The Stipulations are that until the indebtedness has been fully discharged: -
A) the Goods shall not be converted into another product or admixed with other goods to make another product (“the New Product”) nor will the Buyer sell the New Product and pass property in it (“the Sale”) but if the Buyer in breach of the above provision does convert or admix the Goods property in the New Product shall at the earliest moment that such vesting is possible vest and remain in the company whether or not property in the Goods is at that moment extinguished
B) The Resale shall be for the account of the Company and, unless the Company by written notice requires the payment to it of the proceeds of the Resale (“the Proceeds”) to the extent of the indebtedness, in which case the Buyer shall forthwith on receipt of such notice or as soon thereafter as it shall receive the Proceeds make such payment, the Buyer, shall retain the Proceeds, in a separate bank account to the order of the Company and not mix them with any other monies.
C) In the event of a breach by the Buyer of its obligations under (A) the Company shall have the right to trace the proceeds into any other monies with which they may have been mixed and the Buyer shall indemnify the Company on a full indemnity basis against loss damage costs or expenses incurred in such tracing.
D) Until the Resale the Company shall have the right to repossess the Goods or take possession of the New Product at any time and for this purpose shall have the right to enter on any premises or land in the possession of the Buyer and remove the Goods and/or the New Product notwithstanding that they are affixed to such premises or land and the Buyer shall indemnify the Company on a full indemnity basis against all loss damage, costs or expenses so arising including loss, damage, costs or expenses in respect of third party claims.
E) The Goods and the New Products shall until their Resale or Sale be stored separately and shall be clearly marked as the property of the Company.
(iv) The events are:
A) The giving of any notice to the Buyer that a receiver, manager, administrative receiver, supervisor, nominee, administrator or other similar person is to be or has been appointed over any of the property or assets of the Buyer or that a petition to wind up the Buyer is to be or has been presented or that an application for an administration order is to be or has been made or of any notice of a resolution to wind up the Buyer (save for the purposes of a bona fide reconstruction or amalgamation.) .
B) A decision by the Buyer that the Buyer intends to make any arrangement or composition with its creditors generally.
C) Where the Buyer pursuant to Section 123 or 268 of the Insolvency Act 1986 appears to be unable to pay a debt or appears to have no reasonable prospect of being able to pay a debt.
D) Any distress or execution is levied or is threatened to be levied on any property or assets
E) The inability of the Buyer to pay its debts as they fall due.
F) The Buyer ((where the Buyer is a natural person becomes bankrupt or if while the Buyer is a patient within the meaning of the Mental Health Act 1983 an order shall be made in respect of his property under Section 95 or 96 of that act or any statutory re-enactment or modification thereof.
v) On receipt of notification from the Company under (ii) or on the happening of any of the Events, the Power of the Buyer shall cease and the Buyer shall immediately deliver the Goods and the New Product property in which is then reserved to or vested in the Company to such address as the Company shall specify in default of which or in the alternative the Company shall have the right to enter or any premises or land in the ownership or possession of the buyer and the Buyer shall indemnify the Company on a full indemnity basis against all loss, damage, costs or expenses in respect of third party claims.
11. Breach by or Insolvency by the Buyer
If the Buyer shall not comply with any of its obligations to the Company or upon the occurrence of any of the events referred to in Clause 10(b) the Company shall have the right forthwith to terminate the Contract but without affecting any other claim right or remedy of the Company against the Buyer.
12 Cancellation Suspension and Termination
a) If the Buyer shall purport to cancel the whole or any part of the contract the Company may by notice in writing to the Buyer elect to treat the Contract as repudiated and the Buyer shall thereupon be liable to pay to the Company by way of liquidated damages a sum equal to all expenses incurred by the Company in connection with the Contract including an appropriate amount in respect of administrative overheads costs and losses of profit. The Company’s reasonable estimate of the expenses incurred shall be final and binding on the parties.
b) If for any cause whatsoever beyond its control the Company is unable to make any delivery on the applicable delivery date or perform any of its obligations under the Contract the Company may by notice in writing to the Buyer terminate the Contract without liability for any loss or damage thereby incurred by the Buyer.
13. Export Sales
a) In respect of the sale of Goods and/or Services outside the United Kingdom (“Export Sales”) the provision of these Conditions shall apply unless inconsistent with the Terms of this clause.
b) Unless otherwise agreed in writing payment shall be made by irrevocable letter of credit drawn in England on a United Kingdom Clearing Bank and licensed Deposit Taker in the United Kingdom on presentation of the bills of lading
c) The Buyer warrants that if an import licence or permit is required for the importation of the Goods into the country of destination then such import licence or permit has been obtained or will be obtained prior to shipment.
14. Force Majeure
a) In so far as the performance of the Contract by the Company may be affected by any strike, any lack of available shipping or transport or materials, any restriction regulation or decree by any local or municipal authority or government department or by any cause beyond the Company’s reasonable control (which shall be construed without reference to the preceding causes) the Company may elect at its absolute discretion either: -
(i) To terminate the Contract OR
(ii) To proceed to perform or continue performance under the Contract within a reasonable time after the termination of such events or circumstances.
b) In the event that the Company makes an election under Clause 14(a) the Buyer shall accept the Goods or such part of them as are delivered to it notwithstanding any delay.
15. Patents, Registered Designs, Trade Marks, Trade Names and Copyright.
The Buyer shall indemnify the Company against all damage, loss, costs, claims and expenses arising our of any infringement of any letters patent, registered design, trade mark, trade name or copyright or any claim for such infringement or any claim for passing off arising out of work carried out in accordance with the Buyer’s specifications.
16 Right to Sub-Contract
The Company shall be entitled to sub-contract the whole or any part of the Contact without the Buyer’s consent.
17. Severance
Should any one or more of these Conditions be found to be or become invalid illegal or unenforceable in any respect under any law the enforceability and validity of the remaining Conditions shall not in any way be affected or impaired thereby.
18. Waiver
No. Waiver by the Company of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
19. Proper Law
The Contract is and shall be deemed to have been made in England and in all respects be governed by English Law and shall be subject to the jurisdiction of the English Courts. |
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