Terms & Conditions
TERMS AND CONDITION OF SALES
1. Definitions
In these Conditions:
“the Company” means the company named overleaf.
“the Purchaser” means the company or individual who has bought or agreed to buy the Goods.
“the Quotation” means the quotation addressed to the Purchaser by the Company.
The
expression “export contract” means a contract for the sale of goods
where the goods are consigned outside the United Kingdom.
“the Goods” means any item of goods or services of whatsoever nature which is to be sold by the Company to the Purchaser.
The
expression “liability whatsoever” shall include without prejudice to
the generality of the expression, liability in tort and in contract,
including liability for consequential loss (including loss of revenue or
profit) or damage of any kind howsoever caused or arising.
The
expressions “Ex Works” and “FOB” shall have the meanings given them by
the ICC incoterms from time to time save where such meanings are
inconsistent with the terms thereof.
The expression “Order” shall constitute the Purchasers intention to purchase
The expression “Invoice” shall constitute the Company’s intention to supply.
2. General
a. The Quotation does not constitute
an offer to supply and no contract exists unless and until there has
been an acceptance by the company in writing of an order placed (orally
or in writing) by the Purchaser.
b. The acceptance of the Purchaser’s
order whether or not based on a Quotation from the Company shall,
unless otherwise specifically agreed by the Company in writing, be
deemed to be Subject to the terms and conditions herein contained which
these terms and conditions shall apply to the exclusion of any other
provisions contained in any other document issued by the Purchaser and ,
in particular, but without prejudice to the generality of the foregoing
contained in any order sent by the Purchaser.
c. (i)Unless otherwise
stated in writing all descriptions, specifications, drawings and
particulars of weights and dimensions submitted by the Company or
otherwise contained in the Company’s catalogues, brochures, price lists
and other published matter, are approximate only and none of these form
part of any contract or give rise to any independent or collateral
liability upon the part of the Company being intended merely to present a
general idea of Goods as described therein.
(ii) None of the
above-mentioned documents whether issued before or after the formation
of a contract, shall be copied, reproduced or communicated to persons
unconnected with the purchase of the Goods without the Company’s consent
in writing.
d. Any deviations in the Goods delivered from the
particulars of the Goods stated in the contract will not be a ground for
rejecting the Goods and treating the contract as repudiated.
3. Price
a. Unless otherwise stated the price
for the Goods in respect of contracts for delivery within the United
Kingdom and Overseas is Ex Works excluding freight, insurance, carriage
and packaging charges, specialists equipment VAT and all applicable
taxes and duties the cost of which shall be determined as at the
Company’s invoice and shall be payable by the Purchaser
b. The cost of any special packaging shall be determined at the date of invoice and shall be payable by the Purchaser.
c.
The Purchaser shall not be entitled to make any deduction from the
price of the Goods in respect of any set-off or counterclaim unless both
the validity and the amount thereof have been expressly admitted by the
Company in writing.
d. The Company shall be entitled to adjust the
price of the Goods whether before or after acceptance of the Goods in
the event of any increase howsoever arising in the cost to the Company
of supplying the Goods.
4. Payment
a. The Purchaser shall, expect
where other payment arrangements are specifically agreed in writing make
full payment in £ sterling for the Goods on receipt of our invoice. The
Company may charge interest thereon until payment at the rate of four
per cent per annum above the base rate of HSBC Bank pic from time to
time in force and interest shall be compounded at monthly intervals from
the due date of payment for the Goods until payment. Time of payment
shall be of the essence.
b. Any failure to pay the price or any part
thereof and other moneys payable by the Purchaser hereunder when due
will also entitle the Company to refuse to make delivery of any further
consignment of Goods under this contract or goods under any other
contract and without incurring any liability whatsoever to the Purchaser
for any delay.
c. In addition to any lien to which the Company may
be entitled the Company shall, in the event of the Purchaser being
insolvent or failing to pay the purchaser price due under this or any
other contract with the Company (including any contract treated as a
separate contact by virtue of Condition 7 (f) hereof), be entitled to a
general lien on all goods of the Purchaser in the Company’s possession
for the unpaid price of the Goods sold and delivered to the Purchaser by
the Company under this or any other contract.
5. Transfer of Property
a. All the property
in the Goods shall, notwithstanding delivery of the Goods to the
Purchaser, remain in the Company until the Purchaser has made full
payment for the Goods.
b. So long as the property in the Goods
remains in the Company the Purchaser shall keep the Goods free from any
lien or from any charge or similar encumbrance.
c. So long as the
property in the Goods remains in the Company and full payment for the
Goods shall not have been made, whether or not payment shall have become
due the Company shall (unless restricted from doing so by the
Insolvency Act 1976 or some other rule of law), have the right to retake
possession of the Goods and for that purpose, with the Goods may be.
Such retaking of possession shall not relieve the Purchaser from its
obligation to purchase the Goods by paying the full price thereof and
shall not prejudice any rights of the Company including any rights it
may have to accept a repudiation by the Purchaser of the contract
relating to the Goods.
d. The Purchaser may, provided the Purchase
has not become insolvent or had receiver of its undertaking or any part
thereof appointed sell the Goods whether or not component parts of other
goods, to a third party notwithstanding that the property therein
remains with the Company provided that the sale so made by the Purchaser
is in the ordinary course of its business, is at full market value and
takes place before the Company has sought to retake possession of the
Goods in accordance with Condition 5(c) above.
e. Any resale of the
Goods or a sale of other Goods of which the Goods may be component
parts, by the Purchaser before the Company has received full payment for
the Goods shall be made by the Purchaser as fiduciary and the Purchaser
shall pay the proceeds of such resale or sale into a separate account
designated with the name of the Company which shall account to the
Purchaser for any amount by which the proceeds so received exceed the
aggregate amount due to the Company from the Purchaser. The Company
shall be entitled to trace the proceeds of sale in accordance with the
principles in Re Hallett’s Estate (1880) 13 Ch D.696.
f. Unless
prevented by any law from so doing the Company may apply any payment
received from the Purchaser in or towards the satisfaction of any sum
due in respect of the Goods or any item of the Goods whether or not the
Purchaser required the payment to be applied in ot towards the
satisfaction of some other sum due to the Company.
g. The Company may
maintain an action for the price of the Goods sold notwithstanding the
property to them may not have passed to the Purchaser.
h. So long as
the property of the Goods remains in the Company the Purchaser shall
notify the Company of any circumstances that might give rise to the
talking (whether lawful or otherwise ) of the Goods by another person or
the actual or attempted talking thereof.
6. Risk and Insurance
a. The Goods shall be at
the Purchaser’s risk from the occurrence at the earliest point of time,
of any of the followings events:
(i) the physical delivery of the Goods to the Purchaser at the Company’s Works
(ii)the
Physical delivery of the Goods to the Purchaser’s carrier or to an
independent carrier for the purpose of transmission to the Purchaser or
his nominee or
(iii) the physical delivery of the Goods to the Purchaser’s place of business by the Company
b.
Notwithstanding the risk in the Goods has passed to the Purchaser’s,
the Company may affect insurance of the Goods in its own name and in
their full value, or such value as the Company may decide, against all
usual risks and all costs of such insurance shall be determined as at
the date of and included in the invoice. All insurance monies received
shall be applied towards replacement or repair of the Goods.
7. Delivery
a. Unless otherwise stated in
writing the date for the delivery shall run from the date on which
acceptance of the order for goods in communicated to the Purchaser.
b.
Delivery and the Purchaser’s acceptance of the Goods shall be deemed to
have taken place at the earliest point in time at which any of the
events specified in Condition 6(a) above takes place. Signature of any
delivery note by any agent, employee or representative of the Purchaser
or by any independent carrier shall be proof of the delivery and the
Purchaser’s acceptance of the Goods.
c. Without prejudice to any
rights of the company hereunder, if the Purchaser shall fail to give on
or before agreed date of delivery all instructions reasonably required
by the Company or fail to provide all necessary documents, licences,
consents and authorities (which the Purchaser is obliged under these
terms and conditions or by law to obtain) for forwarding the Goods or
shall otherwise cause or request delay in delivery, the Purchaser shall
pay to the Company all storage costs incurred arising from such delay.
d.
Unless otherwise stated in writing the Company shall be entitled to
make partial deliveries or deliveries instalments and to determine the
route and manner of delivery of the Goods and shall for the purposes of
Section 32 (2) or the Sale Goods Act 1979 be deemed to have the
Purchaser’s authority to make such contract with any carrier as to the
Company may seem reasonable. If the route involves sea transit the
Company shall not be obliged to give the Purchaser the notice specified
in Section 32(3) of the Sale of Goods Act 1979.
e. If the Company is
prevented from making delivery of the Goods or any part thereof on the
agreed date of delivery or from installing the Goods or any part thereof
on the agreed date of delivery or from installing the Goods or any part
thereof on the agreed date of installation by any cause whatsoever
outside its control, it shall be under no liability whatsoever to the
Purchaser and shall be entitled at its point either to cancel the
contract or to extend the time or times for delivery or installation by a
period at least equivalent to the during which such delivery or
installation has been prevented.
f. Where delivery of the Goods is
made in instalments, each instalment shall be construed as constituting a
separate agreement to which all the provisions of these conditions
shall (with any necessary alterations) apply.
g. Time shall not be of the essence for delivery.
8. Guarantee
Unless otherwise stated in
writing the Company guarantees the Goods supplied by it against any
defective materials and defective workmanship from the date of delivery
(see Condition 7(b) above) for a period of three months for Goods
valued over £3000.00 provided the Purchaser notifies the Company in
writing of any alleged defect within ten working days of its discovery.
Under this guarantee the Company will, on the Purchaser returning the
Goods carriage paid to such place as the Company shall direct (and
Section 35 of the Sale of Goods Act 1979 shall not apply) or making the
Goods available for collection, make good any such defect by repair or
replacement if, in the opinion of the Company, the defect constitutes a
breach of this guarantee. No claim will be met by the Company under this
guarantee arising out of fair wear and tear or if the Goods have been
incorrectly fitted, misused, subjected to neglect or abnormal conditions
or used with a lubricant of an unsuitable specification or have been
involved in any accident or any attempt to repair. Replace or modify
them has been made without the prior sanction of the Company or if they
have been in way dealt with contrary to any instructions issued by the
Company. This guarantee is condition upon:
a. the Purchaser carrying
out all daily and weekly maintenance as specified in the appropriate
operating instructions, handbook or manual for the goods in question,
and
b. the Company or its authorised distributor providing periodical maintenance during the guarantee period
c. the use of the Goods or equipment the goods have been fitted to by the licensed operators
Should
these Conditions apply to a consumer transaction this Guarantee shall
not affect the statutory rights of the Purchaser in Condition 9 below
and in this Condition ‘consumer transaction’ and ‘statutory rights’
shall bear the meanings they have in the Consumer Transactions
(Restrictions on Statements) Order 1976 (as amended).
The Company guarantees new Goods supplied for a period of twelve months from date of delivery.
9. Exclusion of Liability
a. The Purchaser is
relying on its own skill and judgment in relation to the Goods supplied
under this contract and Company accepts no liability whatsoever for any
knowledge it or its servants or agents may possess as to the purpose
for which the Goods are supplied.
b. Save as expressly provided in
Condition 8 above and save for the Company’s liability for the death or
personal injury to the Purchaser resulting from the Company’s negligence
under any contract which does not fall within the provisions of Section
26of the Unfair Contract Terms Act 1977 the Company shall be under no
liability whatsoever to the Purchaser for:
(i)any defect in, failure
of, or unsuitability for any purpose of the Goods or any part thereof
whether the same be due to any act, omission, negligence or wilful
default of the Company or its servants or agents, or to faulty design,
workmanship or materials or to any other cause whatsoever and all
conditions, warranties or other terms, whether expressed or implied,
statutory or otherwise, inconsistent with the provisions of this
Condition, are hereby expressly excluded, or
(ii) any deviations in
the Goods from the particulars of the Goods stated in the contract save
that where the Company consider, in absolute discretion, that any such
deviations are material it will replace the Goods with goods that comply
with the particulars stated in the contract.
c. Unless otherwise
stated in writing, any statements, recommendations and advice given by
the Company or the Company’s servants or agents to the Purchaser or its
servants or agents as to any matter relating to the Goods are given
without responsibility and shall not give rise to any liability
whatsoever on the part of the Company and the Purchaser hereby
represents and warrants to the Company that no representation has been
made to it by or on behalf of the Company that has in any way induced
the Purchaser to enter into the contract with the Company.
d. Should
these Conditions apply to a consumer transaction the Purchaser’s
statutory rights shall not be affect by this Condition 9.
e. The
Purchaser undertakes that it will comply and will procure that its
employees and every other person working with, on or near, or using any
goods supplied by the Company comply in full with the instructions and
recommendations made in the relevant operating instructions handbooks or
manuals which are provided by the manufacturers with such goods and/or
that they will comply with all other instructions, whether written or
verbal, given by the Company or the manufacturer in connection with the
use or operation of the goods.
10. Indemnity
The Purchaser shall keep the
Company indemnified against all costs, claims, demands, expenses and
liabilities of whatsoever nature including without prejudice to the
generality of the foregoing, claims for death, personal injury. Damage
to property and consequential loss( including loss of profit or loss of
use or goodwill), which may be made against the Company by any third
party or which the revenue of the Company may sustain pay or incur in
relation to any third party claim or demand arising out of or in
connection with the manufacture, installation, sale or use of the Goods
or of other goods of which the Goods are a component part, and which is
caused in whole or in part by any act or omission of the Purchaser.
11. Export Contracts
In the case of export
contracts all import duties, charges and assessments shall be paid by
the Purchaser and the obtaining of any necessary export and import
licenses in respect of the Goods shall be the sole responsibility of the
Purchaser and the Company shall be under no liability whatsoever to the
Purchaser in respect of goods exported without the necessary export and
import licences.
12. Industrial Property Rights
In the event
of any claim being made or action being brought or threatened in respect
of infringement of patents copyright, design rights, trade marks, trade
names , registered designs or any other industrial property rights in
respect of the Goods the Purchaser will make no admissions in respect
thereof and will notify the Company thereof forthwith and the Company
shall be entitled to conduct all negotiations and take all necessary
proceedings to dispute the same in its own name and in the name of the
Purchaser and the conduct of all proceedings and negotiations shall be
completely in the discretion of the Company. In such event the Purchaser
will execute all such documents and do all such things and render all
such assistance to the Company as may be necessary the Company shall
require and the Purchaser shall indemnify the Company against all costs,
expenses, loss or damage incurred by the Company in respect of any
claim being made or action brought if any such claim is made or action
brought or threatened as a result of work done in relation to the Goods
by the Company in accordance with the Purchaser’s specifications or by
the use to which the Goods are put by the Purchaser.
13. Sub-contracts
The Company Reserves the right to sub-contract the performance of the contract or any part thereof
14. Assignments
The Purchaser shall not
assign or transfer or purport to assign or transfer any contract to
which these Conditions apply or the benefit thereof to any other person
whatsoever without the written consent of the Company.
15. Proper Law
All contracts made between the
Company and the Purchaser shall be governed by and construed in all
respects in accordance with English law.