Standard Conditions of Quotation and Sale
(a) These Conditions shall apply to all tenders and quotations made and all orders and contracts for the sale of goods (“goods”) accepted by us. Special or additional terms of Purchaser contained in his order or otherwise shall be of no effect unless separately brought to our notice and accepted in our written acceptance. (b) Any variation or additions to any contract shall only be binding upon us if contained in writing and signed on our behalf by a director or other duly authorised person. Contracts may be cancelled only with our written consent and on terms which will indemnify us for all loss. (c) All orders are subject to our written acceptance (“our acknowledgement”) signed by our duly authorised representative, and to our being able to obtain and use the necessary raw materials.
2. DOCUMENTS AND SPECIFICATIONS
(a) Unless otherwise stipulated in our acknowledgement, all catalogues, descriptions, illustrations, drawings, estimates of performance, dimension or other specification published or submitted with quotations by us are approximate only, are not warranted or guaranteed, and shall not form part of the Contract. (b) We reserve the right at any time to correct clerical or technical errors in the contract documents. (c) Purchaser shall furnish us with all necessary specifications with his order. We take no responsibility for goods manufactured, priced or delivered not in accordance with the order or the specification unless Purchaser’s order and specifications are clear and correct in every particular and the said particulars are correctly set out in our acknowledgement and any drawings submitted by us, which it is Purchasers duty to check.
(a) All prices in our quotations and acknowledgements are ex-works exclusive of V.A.T. They are made up of the cost of raw materials and basic conversion charges: in appropriate cases they include an additional charge for the cost of size, shape, special quality and other extras. (b) We reserve the right to increase the cost of the raw material element of goods, delivery of which has not been accepted by Purchaser for any reason within a period of 90 days from our receipt of Purchaser’s order, to the cost of such raw material on the London Metal Exchange on the date of actual delivery. (c) We reserve the right to increase or decrease the basic conversion charges and any additional charge comprised in our selling price of goods, delivery of which has not been accepted by Purchaser for any reason within a period of 30 days from our receipt of Purchaser’s order, to take account of variations in such charges applying at the date of actual delivery. (d) Purchaser shall pay the selling price as so increased or decreased in accordance with paragraphs (b) and (c) of this Condition. (e) The cost of packing, carriage, insurance and freight will be charged extra where appropriate.
4 TERMS OF PAYMENT
(a) Payment is due in full by the last day of the calendar month following the month in which the goods were despatched, or on the expiry of 30 days from the date on which we notify Purchaser that the goods are ready for despatch, whichever is the earlier. (b) Where the Contract is to be or may be fulfilled in separate deliveries or parts, payment for each such delivery or part shall be made as if the same constituted a separate contract. (c) Should Purchaser fail punctually to comply with the terms of payment, we shall be entitled to interest on any amount overdue at the rate of 2% above the Bank of England Basic Rate from time to time in force.
5. TERMINATION AND PARTIAL DELIVERIES
In the event of Purchaser for any reason whatsoever failing within one calendar month to effect any payment which may be due under the or any contract with us, or if he commits any breach of the Contract, or if he becomes insolvent or enters into a composition with or for the benefit of his creditors, or being a body corporate has a receiver appointed of its undertaking or assets or any part thereof, or save for the purposes of reconstruction or amalgamation, goes into liquidation, we shall thereupon be entitled, without prejudice to our other rights, forthwith to terminate the Contract or any unfulfilled part thereof, or at our option to make partial deliveries.
6 TIME FOR DESPATCH
(a) Times for despatch and delivery expressed in the Contract are not of the essence. We shall be under no liability for any loss or damage to Purchaser or others arising directly or indirectly out of late despatch or delivery, whether due to our default or not, nor shall such late despatch or delivery be deemed to be a breach of contract, nor entitle Purchaser to cancel the Contract. (b) We shall be entitled, without liability on our part and without prejudice to our other rights, to terminate the Contract or any unfulfilled part thereof, or at our option to suspend or make partial deliveries, if the completion of the manufacture of goods by us or by our sub-contractors or suppliers is prevented, hindered or delayed whether directly or indirectly, by reason of Purchaser failing to furnish necessary information or instructions, war, civil commotion, governmental restrictions, transport difficulties, strikes lockouts, accidents, or stoppages to works, shortages of labour, materials, equipment, fuel or power, machinery breakdown or any other cause whatsoever beyond our or our sub-contractors or suppliers reasonable control, whether such cause exists at the date of the order or not. Any such cause shall be deemed to prevent, hinder or delay us or our sub-contractors or suppliers if we or our sub-contracts or suppliers respectively are thereby prevented, hindered or delayed from fulfilling all aggregate obligations both under the Contract and under all other contracts, whether with Purchaser or with third parties, relating to the supply of the same or similar goods.
(a) When delivery is arranged by us, Purchaser shall be bound to accept delivery on arrival at his works, when risk shall pass to Purchaser. Purchaser must notify us and the carrier in writing (otherwise than upon the carrier’s documents) of damage in transit, mis-delivery or quantity discrepancy immediately on arrival. Goods accepted without checking must be signed for as “not examined” otherwise no claim whatsoever will be accepted. Purchaser must notify us and the carrier in writing (otherwise than upon the carrier’s documents) of non-delivery within 6 days where delivery is effected through the post or on our own vehicles, 10 days where delivery is effected by road transport or British Rail, in all cases from the date of despatch advised to Purchaser. (b) Where delivery is arranged by Purchaser, risk shall pass to Purchaser on delivery to his carrier. (c) Without prejudice to our other rights, should Purchaser, for any other reason fail to collect or take delivery of goods within 30 days of our notification that they are ready for collection or despatch, we shall be entitled at Purchaser’s risk and expense to store or effect storage of the goods elsewhere. (d) Purchaser warrants that any necessary unloading facilities will be available at the place of delivery. (e) Where goods are sold f.o.b. the risk in the goods shall pass to the Purchaser immediately the goods are over the ship’s rail, and we shall be under no obligation to give Purchaser the notice specified in Section 32(e) of the Sale of Goods Act 1893.
8 FAULTS AND DEFECTS AND EXCLUSION OF LIABILITY
(a) On arrival of goods Purchaser must immediately examine them and any visual faults or defects must be notified to us in writing with 3 days. Non-visual faults and defects must be notified within 90 days. (b) Upon Purchaser within the appropriate period provided by sub-clause (a) above notifying us of any fault or defect in the goods or within the appropriate period provided by clause 7(a) of damage in transit, mis-delivery or quantity discrepancy, and in the case of allegedly defective or faulty goods upon their being returned to us within 30 days of such notification and upon the fault, defect or damage in transit, mis-delivery or quantity discrepancy being established to our satisfaction, we shall replace such goods or make up any shortage if goods are delivered not in accordance with specification, we shall accept the same for credit and replacement. (c) We shall not replace goods or make up shortages: (i) if faults or defects are not notified in accordance with clause 8(a) or if damage in transit, mis-delivery or quantity discrepancy is not notified in accordance with clause 7(a); (ii) in respect of which Purchaser or any third party has without our previous written consent effected modifications or repairs; (iii) if the faults or defects were caused by incorrect or negligent handling, disregard of operation instructions, overloading, unsuitable work, faulty erection or any other default by Purchaser or any third party; (iv) If the faults or defects were caused by fair wear and tear, accident, or any other matter beyond our reasonable control occurring after the date of arrival. (d) The terms of the Condition are in lieu of all conditions, warranties or other terms as to description, fitness for purpose, condition, merchantability, quantity or otherwise in respect of the goods or packing, whether expressed in the Contract or implied by Common Law, custom or statute and notwithstanding that such purpose or condition may be, may become, or may have been known to us. Apart from our obligation to replace goods in accordance with the terms of the Condition, we accept no liability either for faults or defects in goods or for any loss or damage to Purchaser or others arising directly or indirectly from any breach by us of the terms of the Contract or of the general law, and defects in quality or dimension shall not be a ground for the cancellation of the Contract or the balance of Contract by Purchaser. (e) Without prejudice to the generality of the foregoing: (i) We shall not be liable for any consequential loss or damage suffered by Purchaser, including but without limitations, delay, loss of production, loss of profits or loss of or damage to other property or goods, nor shall we be liable for any loss or damage capable of being covered by insurance. (ii) We shall not be liable in damages in excess of the total price stated in the Contract, even if Purchaser’s loss or damage results from a fundamental breach or repudiation and even if further performance of the Contract is frustrated. Purchaser shall also indemnify us against all actions, claims or demands by third parties in tort or otherwise directly or indirectly in connection with faults in connection with faults or defects in the goods to the extent that the same exceeds the limitations of liability aforesaid. (f) The provisions of this Condition 8 shall apply, subject to any relevant limitations imposed by the Unfair Contract Terms Act 1977. (g) We reserve the right to deliver goods to within +10% or –5% of the quantity or weight specified in Purchaser’s order, and payment shall be made for the actual quantity supplied pro rata.
We shall not be liable for, and Purchaser shall indemnify us against all claims by any person in tort or for infringement or alleged infringement of industrial property rights directly or indirectly connected with goods manufactured by us or with work done by us on goods in accordance with Purchaser’s specifications or with the siting or installation of goods.
10 PROPERTY AND RISK IN GOODS
(a) Risk of damage to or loss of the goods will pass to the Purchaser on delivery (as defined in Condition 7 above). (b) Ownership of the goods will not pass to the Purchaser until the Company has received in full (in cash or cleared funds) all sums due to it in respect of: (i) the goods; and (ii) all other sums which are or which become due to the Company from the Purchaser on any account. (c) Until ownership of the goods has passed to the Purchaser, the Purchaser must: (i) hold the goods on a fiduciary basis as the Company’s bailee; (ii) subject to paragraphs (d) and (e) below, store the goods (at no cost to the Company) separately from all other goods of the Purchaser or any third party in such a way that they remain readily identifiable as the Company’s property; (iii) not destroy, deface or obscure any identifying mark or packaging on or relating to the goods; and (iv) maintain the goods in satisfactory condition insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company, and will whenever requested by the Company produce a copy of the policy of insurance. (d) The Purchaser may use and/or incorporate the goods in or together with any product manufactured or assembled by the Purchaser before ownership has passed to it provided that such use and/or incorporation is solely in the ordinary course of the Purchaser’s business. (e) The Purchaser may resell the goods or any product in which the goods are used and/or incorporated before ownership has passed to it solely on the following conditions: (i) any sale will be effected in the ordinary course of the Purchaser’s business at full market value and the Purchaser will account to the Company accordingly; and (ii) any such sale will be a sale of the Company’s property on the Purchaser’s own behalf and the Purchaser will deal as principal when making such a sale. (f) The Purchaser’s right to possession of the goods will terminate immediately if: (i) the Purchaser has a bankruptcy order made against it or makes an arrangement or composition with its creditors or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal) or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver, manager, administrator or administrative receiver appointed of its undertaking or any part thereof or a resolution is passed or a petition presented to any Court for the winding-up of the Purchaser or for the granting of an administration order in respect of the Purchaser or any proceedings are commenced relating to the insolvency or possible insolvency of the Purchaser; or (ii) the Purchaser suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations or duties under the Contract and these Conditions or any other contract between the Company and the Purchaser, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Purchaser ceases to trade. (g) The Company will be entitled to recover payment for the goods notwithstanding that title in any of the goods has not passed from the Company. (h) The Purchaser grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the goods are or may be stored in order to inspect them, or, where the Purchaser’s right to possession has terminated, to recover them.
11 HEALTH AND SAFETY AT WORK
The attention of Purchaser is drawn to the provisions of Section 6 of the Health and Safety at Work etc. Act 1974. We will make available on request, information on the design and construction of goods to ensure that, as far as is reasonably practicable, they are safe and without risk to health when properly used. It is the responsibility of the Purchaser to take such steps as are necessary to ensure that appropriate information relevant to goods is made available to its employees and any person to whom Purchaser supplies them.
12 LEGAL CONSTRUCTION
The Contract and these Conditions shall in all respects be construed and operate in conformity with English law. If any of these Conditions or any part thereof is rendered void or unenforceable by any legislation to which it is subject, it shall be so void and unenforceable to that extent only.
All disputes, differences and questions which may at any time arise between the parties hereto or their respective representatives or assigns touching or arising out of or in respect of these Conditions or the Contract or the subject matter thereof shall be referred to a single Arbitrator in accordance with the provisions of the Arbitration Act 1950 or any statutory modification or re-enactment thereof for the time being in force. In default of agreement, the Arbitrator shall be appointed by the President of the Law Society for the time being.