Terms & Cconditions of Sale
Unless other terms and conditions are expressly accepted by the Seller by means of a specific written amendment hereto signed by a Director of the Seller, the Contract will be on the terms and conditions set out below (“the Contract Terms”) to the exclusion of any other terms and conditions (except those implied in favour of a seller which are not inconsistent with the Contract Terms) whether or not the same are endorsed upon, delivered with or referred to in any purchase order or other documents delivered with or referred to in such order, specification or like document will have effect to the exclusion or amendment of the Contract Terms.
Any quotation issued will remain in force for a period of 30 days from its date of issue and is given on the basis that no contract will come into existence until the Seller despatches an acknowledgement of order to the Buyer.
3.1 The Seller will endeavour to deliver the goods or materials to be supplied under the Contract (“the Goods”) within the time agreed and if no time is agreed within a reasonable time, but in no circumstances will the Seller be liable for loss or damage of any kind whatsoever caused directly or indirectly by any delay in the delivery of the Goods, nor will any such delay entitle the Buyer to cancel or rescind the Contract.
3.2 The Seller will be entitled to make delivery by instalments.
3.3 Unless otherwise agreed delivery will be made to the Buyer’s premises. The cost of packing and carriage from the Seller’s premises at Cradley Heath to the Buyer’s premises will be added to the price payable.
3.4 No claim for damage or shortages will be considered unless the Seller is advised in writing within 7 days of delivery. Where the Goods are not delivered ex works any claim for damage or shortages shall also be notified to the carriers by the Buyer in the manner and within the appropriate notice or notices as specified in Clause 3.4 above, the Buyer’s claim will be deemed to have been waived and will be absolutely with the Buyer’s requirements.
3.5 In the event of failure by the Buyer to give the appropriate notice or notices as specified in Clause 3.4 above, the Buyer’s claim will be deemed to have been waived and will be absolutely barred.
4. Scheduled Orders
If the order is a scheduled order where the quantity of goods required and the agreed delivery dates (including the terminal date) on which the requirements will be called off are specified, the whole order will be treated as a single contract upon the Contract Terms the Seller will not be under any liability to the Buyer if at the time of any call off by the Buyer the Seller is unable for whatever reason to supply Goods in accordance with the Buyer’s requirements.
5. Guarantee and exclusion clauses
5.1 Where the Seller is not the manufacturer of the Goods the Seller will use reasonable endeavours to make over to the Buyer the benefit of any warranty or guarantee given by the manufacturer.
5.2 In respect of Goods manufactured by the Seller the Seller will at the Seller’s premises within a period of 18 months from the date of despatch or 12 months from the date of installation whichever is the shorter repair or at its option replace any Goods which are proved to the satisfaction of the Seller to be defective in material or workmanship Provided Always that this obligation will not apply where: -
5.2.1 The Goods have been altered in any way whatsoever or have been subjected to misuse or unauthorised repair; or:
5.2.2 The Goods have been improperly installed or connected (unless the Seller carried out such installation and connection); or
5.2.3 The buyer has failed to observe or perform the requirements of any maintenance or safety procedures relating to the Goods; or
5.2.4 The Buyer has failed to notify the Seller of any defect or suspected defect immediately the same comes to the knowledge of the Buyer; or
5.2.5 The Buyer is in breach of this or any other contract made with the Seller.
The cost of dismantling and reassembling the Goods and of returning them to the Seller for inspection and repair or replacement will be borne by the Buyer. Any Goods replaced will belong to the Seller.
5.3 Save as provided in Clauses 5.1 and 5.2 the Seller will be under no liability under the Contract for any personal injury, death, loss or damage of any kind whatsoever whether consequential or otherwise including but not limited to loss of profits and the Seller hereby excludes all conditions, warranties and stipulations express or implied, statutory, customary or otherwise which but for such exclusions would or might subsist in favour of the Buyer except that such exclusions will not apply to any implied condition that the Seller has or will have the right to sell the Goods when the property is to pass.
5.4 Under no circumstances will the Seller or it servants, agents or sub-contracts be liable for any loss or damage of any kind whatsoever (except arising from death or personal injury) whether consequential or otherwise caused directly or indirectly by any negligence on the part of the Seller or on the part of any of its servants, agents or sub-contractors in connection with or arising out of the manufacture or supply of the Goods or in connection with any advice or statement given or made by or on behalf of the Seller.
6. Property in the Goods and Risk
6.1 The legal and equitable title to the goods supplied under the Contract (in this clause referred to as “the Contract Goods” which expression includes any of them) will not pass to the Buyer until the price for the Contract Goods has been paid in full and until such payment the Buyer will hold the Contract Goods in a fiduciary capacity as bailie for the seller.
6.2 Where the Contract Goods are resold by the Buyer at the time of such resale the property in the Contract Goods has not passed to the Buyer then the proceeds of such resale (or other assets into which such proceeds have been converted) will be held by the Buyer in a fiduciary capacity on trust for the Seller and the Buyer will account to the Seller for the same to the extent necessary to pay the price for the Contract Goods.
6.3 The Buyer shall so long as the Seller is entitled to the property in the Contract Goods store the same so that they are identifiable as the property of the Seller.
6.4 Without prejudice to any of the Seller’s other rights (whether to damages or under the Contract or otherwise however) the Seller may at any time after the price for the Contract Goods has become due and remains unpaid rescind the Contract and/or recover the Contract Goods which are still the Seller’s property and may enter onto the Buyer’s premises either by the Seller’s servants or agents for that purpose.
6.5 Whether or not the price for the Contract Goods or any other sum has become due from the Buyer under the Contract such price or such sum will be deemed to be due from the Buyer immediately on his committing any act of bankruptcy, calling a meeting (whether formal or informal) of any of his creditors or (where the Buyer is a body corporate) having a Receiver or Manager appointed of its undertaking or any part thereof or on a resolution being passed or on a petition being presented to any Court for the winding-up of the Buyer or on the happening of any act whatsoever or the commencement of any proceedings whatsoever relating to the insolvency or possible insolvency of the Buyer.
6.6 Notwithstanding the foregoing provisions the risk in the Contract Goods shall pass on delivery to the Buyer or a carrier whichever is earlier.
7.1 The contract price is based on the costs of materials, labour, sub-contracts, transport, taxes, duties and currency exchange rates ruling at the date of the quotation. The Seller reserves the right to amend the contract price to take account of any variations in these costs or the imposition of any new taxes or duties occurring from whatever cause between the date of the quotation and the delivery of the Goods.
7.2 Unless expressly stated otherwise all prices are exclusive of V.A.T. and packing and carriage.
8.1 8.1.1. Where no account has been agreed by the Seller the Goods will not be delivered until the Seller has paid the
amount shown on the pro-forma invoice relating to the Goods.
8.1.2. Where an account has been agreed the Seller may in its absolute discretion set and alter the Buyer’s credit limit and the Seller reserves the right not to deliver the Goods if the price thereof increases the amount owed by the Buyer to the Seller beyond the Buyer’s credit limit.
8.1.3. Where an account has been agreed and the price of the goods together with all other indebtedness of the Buyer to the Seller does no exceed the Buyer’s credit limit the price will become payable when the Seller’s invoice is sent to the Buyer and payment will be made by the Buyer within 30 days of the date of the Seller’s invoice.
8.2 Interest at an annual rate of 3.5% above Lloyds TSB Base Rate from time to time will accrue on overdue accounts from the date of invoice until payment.
8.3 Where the Buyer makes default under the Contract or any other contract with the Seller in payment on the due date of any sum due to the Seller, the Seller without liability may postpone any delivery or may cancel the Contract or any other contract between the Seller and the Buyer but without prejudice to any right or remedy which the Seller may have against the Buyer in respect of such default.
9.1 If the Buyer cancels, extends or delays or purports to cancel, extend or delay the Contract or part thereof, or fails to take delivery of any Goods at the time agreed (if any) or if no time is agreed within a reasonable time, then the Buyer will be liable (without prejudice to any other rights of the Seller to claim damages) to indemnify the Seller against any resulting loss, damage or expense incurred by the Seller in connection with the supply or non-supply of the Goods including the cost of any material, plant or tools used or intended to be used thereof and the cost of labour and other overheads including a percentage in respect of profit.
9.2 If the Seller is unable (whether temporarily or permanently) to procure any services goods or components necessary to enable it to supply the Goods or if the supply of the Goods is prevented or hindered by reason of Act of God, War, Act of Parliament or orders, regulations or bye-laws made under any statutory authority, labour disputes including those involving the workforce of the Seller, civil commotion, fire, flood or any causes of whatsoever kind and whenever occurring being a cause beyond the Seller’s control, the Seller may cancel the Contract by notice in writing to the Buyer so far as it relates to Goods no then supplied or work not then done and such cancellation shall not give rise to any claims by the Buyer Provided Always that the Buyer shall remain liable to pay for Goods delivered prior to the date of such cancellation.
If the Buyer fails to take delivery of the Goods when they are ready for delivery the Seller may, at its opinion, either store them itself or have them stored by third parties on such terms as the Seller may in its absolute discretion think fit. In any event the cost of storage will be borne by the Buyer and insofar as the Seller does the storage then such cost will be the Seller’s storage charges current at the time of storage. The cost together with any additional insurance or double handling charges will be added to and form part of the price for the Goods.
11. Design etc.
11.1 Where the Goods are manufactured in accordance with information or drawings supplied by the Buyer or to his design or specification or where standard goods of the Seller are altered in accordance with the Buyer’s instructions: -
11.1.1 no guarantee or warranty is given by the Seller as to the practicability, efficiency, safety or otherwise of the Goods (this being without prejudice to any other of the Contract Terms).
11.1.2 The Buyer will indemnify and keep the Seller indemnified against all liability incurred by the Seller incurred by the Seller as a result of such goods infringing any patent, registered design, copyright, or other like protection or the provision of any statute, statutory instrument or regulation for the time being in force.
11.2 No variation by the Seller in the specification of design of any Goods shall constitute a breach of contract or impose upon the Seller any liability whatsoever.
11.3 The Seller shall be under no liability whatsoever to the Buyer in respect of any loss damage or claim incurred by or made against the Buyer should goods supplied by the Seller infringe any patent registered design copyright or other like protection or the provision of any statute statutory instrument or regulation for the time being in force.
11.4 Unless otherwise agreed in writing all patterns, drawings, tools etc., produced by the Seller shall remain the property of the Seller and must not be used or copied by the Buyer.
12. Demonstration items
Any demonstration items and samples are supplied to the Buyer on the basis that if they are not returned to the Seller, carriage paid and properly packed within 60 days of receipt by the Buyer, they will be deemed to be Goods ordered by the Buyer at the Seller’s then current price of such goods.
13. Brochures etc.
No drawings, descriptive matter, weights, dimensions or shipping specifications issued by the Seller or the manufacturer of the Goods, nor the description and illustrations contained the in the Seller’s or manufacturer’s catalogues, price lists and other advertising matter shall be deemed to form part of the contract or be regarded as a warranty or representation relating to the Goods.
14. Right of re-sale
If the Buyer defaults in accepting delivery of or paying for the Goods, the Seller reserves the right to re-sell the Goods or any of them to a third party without giving notice to the Buyer of the Seller’s intention to re-sell.
15.1 The Contract will terminate immediately upon service of written notice or termination by the Seller on the Buyer on any one or more of the following grounds:
15.1.1. That the buyer has become subject to the bankruptcy laws or has made an arrangement or composition with his creditors or otherwise taken the benefit of any Act for the time being in force for the relief of insolvent debtors or has suffered or allowed any execution whether legal or equitable to be levied on his property or obtained against him or (being a body corporate) had convened a meeting of creditors (whether formal or informal) or has entered into liquidation (whether voluntary or compulsory) except a voluntary liquidation for the purposes only of reconstruction or amalgamation or has a receiver appointed of its undertaking or any part thereof).
15.1.2. That the Buyer has failed to observe or perform any or its obligations or duties under the Contract.
15.2 The termination of the Contract in any way whatsoever will be without prejudice to the rights, obligations and liabilities of either party accrued prior to termination.
16.1 The Seller will be entitled to assign sub-contract or sub-let the Contract or any part thereof.
16.2 Failure by the Seller to enforce any of the Contract Terms will not be construed as a waiver of any of its rights hereunder.
16.3 The legal construction of these clauses shall not be affected by their headings, which are for convenience or reference only.
17. English Law
The formation interpretation and operation of the Contract will be subject to English law and the Buyer submits himself to the non-exclusive jurisdiction of the English Courts.