Sales Terms and Conditions

FORMATION OF CONTRACT
1.1
All quotations are made and all Orders are accepted subject to the following conditions. All other terms conditions or warranties whatsoever are excluded from the Contract or any variation thereof to the fullest extent permitted by Law unless expressly accepted by the Company in writing.
1.2
Quotations, offers and tenders are for the whole of the Goods or services for which quotations are given by the Company and the Company reserves the right to refuse acceptance of any Order which constitutes only part of the Goods or services forming the subject of the quotation, offer or tender.
1.3
Quotations shall be available for acceptance for a maximum period of 30 days from the date thereof and may be withdrawn by the Company within such period at any time by written or oral notice.
1.4
Acceptance of delivery of Goods shall constitute acceptance of these Conditions where acceptance has not previously been communicated by the Purchaser to the Company.
1.5
If any statement or representation has been made to the Purchaser by the Company its servants or agents upon which the Purchaser relies other than in the documents enclosed with the Company’s quotation or acknowledgement of Order then the Purchaser must set out that statement or representation in a document to be attached to or endorsed on the Order and in any such case the Company may confirm reject or clarify the point and submit a new quotation.
1.6
If an Order is not placed the Purchaser is liable to reimburse any expenses incurred by the Company at the Purchasers request.
PRICES
2.1
All prices are unless otherwise stated quoted or set out in the Company’s current price list as the case may be net exclusive of VAT. The Company reserves the right prior to acceptance of any offer to withdraw or amend its price lists without notice from time to time.
2.2
Unless otherwise agreed in writing, carriage will be paid by the Company on all Orders in excess of the carriage paid limit as set out in its then current price list from time to time for despatch to points within the United Kingdom by the Company’s ordinary mode of conveyance save that on Orders for despatch to Northern Ireland, the Channel Islands and the Scottish Islands carriage will be paid to the nearest mainland port. All Orders for despatch to points outside the United Kingdom are inclusive of packing and are priced on an Ex-Works basis unless otherwise agreed in writing. Incoterms 2000 or Incoterms then current as at the date of the Order apply to all export orders.
2.3
Where at the Purchaser’s request, Orders are forwarded by any conveyance involving a higher carriage charge than would be incurred by use of the Company’s usual mode of conveyance then the additional charge will be debited to the Purchaser. This includes Next Day and Emergency delivery deliveries where the cost of carriage will be charged to the Purchaser.
2.4
The Purchaser shall be liable to the Company for any demurrage costs incurred in the event of vehicles being unduly delayed at the Purchaser’s premises when delivering.
2.5
The Company reserves the right to vary the price if the cost of labour, material or other services varies from that at the Contract date and in any event Orders will be invoiced at the price ruling at the date of despatch.
2.6
In the event of any alteration being requested by the Purchaser and agreed to by the Company in design or specification the Company shall be entitled to make an adjustment of the Contract price corresponding to such alteration.
2.7
The Company reserves the right to vary Orders to the extent necessary to conform to the standard units of pack as detailed in its then current price list.
2.8
Quotations issued in a currency other than sterling may, unless otherwise agreed in writing, be subject to amendment in the event of fluctuation in the applicable exchange rate prior to the date of invoice.
PAYMENT
3.1
Unless otherwise agreed by the Company in writing the terms of payment shall be net cash monthly account due and payable on the last day of the month following the month in which, in the case of United Kingdom Orders, the Goods were dispatched or would have been dispatched save for postponement otherwise than due to default on the part of the Company or, in the case of export Orders the shipping documents are dispatched from the Company’s premises. Payments in respect of export Orders are payable on the due date in the currency stated in the invoice in accordance with the method of payment stipulated by the Company.
3.2
The Company shall be entitled to submit its invoice with its delivery advice note or at any time thereafter save that where delivery has been postponed at the request of or by the default of the Purchaser then the Company may submit its invoice at any time after the Goods are ready for delivery or would have been ready in the ordinary course but for the request or default as aforesaid.
3.3
Where Goods are delivered by instalments the Company may invoice each instalment separately and the Purchaser shall pay such invoices in accordance with these Conditions.
3.4
No disputes arising under the Contract nor delays beyond the reasonable control of the Company shall interfere with prompt payment in full by the Purchaser.
3.5
In the event of default in payment by the Purchaser the Company shall be entitled, without prejudice to any other right or remedy to suspend all further deliveries on any Contract or Contracts between the Company and the Purchaser without notice and to charge interest on any amount outstanding at the rate 4% per annum above the Base Rate of the Bank of England in force at the time when payment was due.
DELIVERY
4.1
Delivery terms quoted are subject to confirmation after receipt of Order together with specifications and/or fully dimensional working drawings if applicable.
4.2
Time for delivery is given as accurately as possible but is not guaranteed. The Purchaser shall have no right to damages or to cancel the Order for failure for any cause to meet any delivery time stated.
4.3
Alterations by the Purchaser in design specifications or quantities required may result in delay in delivery.
4.4
Unless otherwise agreed in writing delivery shall be made at the Purchaser’s premises except where the Goods are sold Ex-Works or FCA (free carrier). In the case of Goods sold FCA delivery shall be made to the UK depot or the carrier.
4.5
Failure by the Purchaser to take delivery of or to make payment in respect of any one or more instalments of Goods delivered hereunder shall entitle the Company to treat the whole Contract as repudiated by the Purchaser.
4.6
Where a period is named for delivery and such period is not extended by consent in writing from the Company the Purchaser shall take delivery within that period.
4.7
If the Company does consent in writing to the Purchaser’s request for postponement of delivery or where delivery is postponed otherwise than due to default by the Company the Purchaser shall pay all costs and expenses including a reasonable charge for storage and transportation occasioned thereby and payment for the Goods shall be made in accordance with these Conditions.
4.8
Any packaging supplied by the Company unless otherwise expressly agreed is intended to provide adequate protection throughout normal conditions of transit of usual duration.
4.9
The Company will not be liable for unloading of Goods or placing in position on site except by prior agreement in writing.
4.10
The Purchaser shall in the case of Orders for shipment overseas to the Purchaser’s place of business be solely responsible for obtaining all necessary import authorisations, the payment of any applicable import taxes, imposts or duties, and the Company shall be under no obligation to give to the Purchaser the notice specified in Section 32(3) of the Sale of Goods Act 1979 (or any re enactment there of).
PACKING
5
Unless otherwise agreed in writing cases and other packing materials when charged for will be credited if returned to the Company’s works within two months of the date of invoice, carriage paid and in good condition.
RISK AND TITLE
6.1
Risk shall pass to the Purchaser so that the Purchaser is responsible for all loss damage or deterioration to the Goods:
6.1.1
if the Company delivers the Goods by its own transport or in accordance with a specific contractual obligation arranges transport for the goods, at the time in the case of a United Kingdom Order when the goods or a relevant part thereof arrive at the place of delivery or in the case of an export Order when the goods or a relevant part there of arrive at the appropriate United Kingdom port or other place of despatch, or
6.1.2
in all other circumstances at the time when the Goods or a consignment or other part thereof leave the premises of the Company.
6.2
Title to the Goods shall only pass to the Purchaser upon the happening of any one of the following events:
6.2.1
the Purchaser has paid to the Company all sums due and payable by it to the Company under this Contract and all other Contracts made at any time between the Company and the Purchaser, or
6.2.2
when the Company serves on the Purchaser notice in writing specifying that title in the Goods or such part thereof has passed.
6.3
The Company may recover Goods in respect of which title has not passed to the Purchaser at any time and the Purchaser hereby licenses the Company, its officers, employees and agents to enter upon any premises of the Purchaser for the purpose of either satisfying itself that Condition.
6.4
below is being complied with by the Purchaser or of recovering any Goods in respect of which property has not passed to the Purchaser.
6.4.1
Until title to the Goods has passed to the Purchaser pursuant to the terms hereof it shall possess the Goods as a bailee of the Company on the terms of this Contract. If the Company so requires the Purchaser shall store the Goods separately from other goods and shall ensure that they are clearly identifiable as belonging to the Company.
6.5
Without prejudice to the foregoing sub-conditions and in the event that the Purchaser shall in the course of its business dispose of the Goods to a customer being a bona fide purchaser without notice of the Company’s rights then the Purchaser shall have a fiduciary duty to the Company to account to the Company for the proceeds (which shall be kept separate and identifiable from the Purchaser’s own monies) but may retain there from an excess of such proceeds over the amount outstanding under this or any other prior Contract between them.
CANCELLATION/RETURN OF GOODS
7.1
Cancellation will only be agreed to by the Company on condition that all costs and expenses incurred by the Company up to the time of cancellation and all loss of profits and other loss or damage resulting to the Company by reason of such cancellation will be paid forthwith by the Purchaser to the Company.
7.2
The Company may at its sole discretion accept the return of any Goods ordered by, but subsequently found to be surplus to the requirements of the Purchaser. However the Purchaser is notified that the Company will only consider the return of Goods in the following circumstances:
7.2.1
the Purchaser must send to the Company a detailed schedule of the Goods which the wishes to return,
7.2.2
prior written consent to return must have been given by the Company,
7.2.3
the Goods must be unused and in the same condition as originally delivered by the Company to the Purchaser,
7.2.4
the Purchaser must bear all costs of return and must accept all risk in respect there of, and
7.2.5
the Goods to be of a type contained in the Company’s current sales literature and not a discontinued line. Where the above requirements have been complied with the Company will credit the account of the Purchaser with an amount equal to the price or corresponding Goods of the Company in the price list of the Company ruling immediately prior to the price list current at the date of return of the Goods less a handling charge of 15%. If refurbishing is required, the Company if it accepts the Goods for return, will make a further deduction in respect of the refurbishing costs.
7.3
Goods returned without the Company’s consent will not be accepted for credit.
TOLERANCES
8.1
Unless otherwise agreed in writing, Goods will be made within the Company’s published manufacturing limits. If special limits are required the Purchaser may be required to supply appropriate gauges.
8.2
All weights and dimensions quoted are subject to recognised tolerances.
LOSS, SHORTAGES AND DEFECTS APPARENT ON INSPECTION
9.1
The Purchaser shall have no claim for loss, shortages or defects apparent on visual inspection, unless:
9.1.1
the Purchaser inspects the Goods on the first working day following their arrival at its premises or other agreed destination, and
9.1.2
a written complaint specifying the loss, shortage or defect (otherwise than by a qualified signature on a delivery note) is made to the Company within two days of delivery in the event of partial loss, damage, or non-delivery of any separate part of a consignment, or within fourteen days of the notified date of despatch in the event of non-delivery of a whole consignment or, in either event, within such shorter period as the carrier’s conditions (if applicable) require, and
9.1.3
the Company is given an opportunity to inspect the Goods and investigate any complaint before any use of or alteration to or Interference with the Goods.
9.2
If a complaint is not made to the Company as herein provided then the Goods shall be deemed to be in all respects in accordance with the Contract and the Purchaser shall be bound to pay for the same accordingly.
9.3
Defects in quality of dimension in any instalment delivery shall not be a ground for cancellation of the remainder of the Order.
9.4
Whether or not the Company arrange delivery the Company is in no way responsible for delivery of the Goods and is in no way liable for claims for loss or damage in transit which must be made by the Purchaser against the carrier in accordance with the carrier’s conditions.
DEFECTS NOT APPARENT ON INSPECTION
10.1
The Purchaser shall have no claim in respect of defects not apparent on the visual inspection at the time of delivery envisaged by these conditions unless:
10.1.1
a written complaint is sent to the Company as soon as reasonably practicable after the defect is discovered and no use is made of the Goods thereafter and no alteration made thereto or interference made therewith before the Company is given an opportunity to inspect the Goods in accordance with this Condition and
10.1.2
the complaint is sent within 12 months of the date of delivery of the Goods or in the case of an item not manufactured by the Company within the guarantee period specified by the manufacturer of such item.
10.2
The Purchaser shall not be entitled to any claim to set off in respect of any repairs or alterations undertaken by the Purchaser without the prior specific written consent of the Company nor in respect of any defect arising by reason of fair wear and tear or damage due to misuse.
10.3
The Company shall not be liable for loss or damage suffered by reason of use of the Goods after the Purchaser becomes aware of a defect or after circumstances which should reasonably have indicated to the Purchaser the existence of a defect.
10.4
The Company may within 15 days of receiving such a written complaint (or 28 days where the Goods are situate outside the United Kingdom) inspect the Goods and the Purchaser if so required by the Company shall take all steps necessary to enable the Company to do so.
GUARANTEE
11.1
Save as otherwise provided by other conditions of these Conditions Sections 12 to 15 of the Sale of Goods Act 1979 as amended or consolidated by statute from time to time are to be implied into this Contract.
11.2
in the event of the condition of the Goods being such as might or would (subject to these Conditions) entitle the Purchaser to claim damages or to repudiate the Contract the Purchaser shall not then do so but shall first ask the Company to repair or supply satisfactory substitute Goods and the Company shall thereupon be entitled at its option to repair or take back the defective Goods and to supply satisfactory substitute Goods free of cost and within a reasonable time or repay the price of the Goods in respect of which the complaint is made. If the Company does so repair the Goods or supply satisfactory substitute Goods or effect repayment the Purchaser shall be bound to accept such repaired or substituted Goods or repayment and the Company shall be under no liability in respect of any loss or damage whatsoever arising from the initial delivery of the defective Goods or from the delay before the defective Goods are repaired or the substitute Goods are delivered or the repayment is effected.
11.3
In the case of Goods not manufactured by the Company the Company gives no assurance or guarantee whatsoever that the sale or use of the Goods will not infringe the patent copyright or other industrial property rights of any other person, firm or company. The statutory implied terms contained in the Sale of Goods Act 1979 (as amended by statute from time to time) shall in respect of Goods not manufactured by the Company be excluded to the fullest extent permitted by law and subject thereto the only obligation accepted by the Company will be to pass on to the Purchaser by way of assignment or transfer (if and to the extent possible) the benefit of any manufacturer’s guarantee or warranty.
11.4
The Company does not manufacture certain proprietary items (which shall mean items sold under brand names and described as proprietary items by the Company in its current trade catalogue) and the Company’s liability in respect of such proprietary items shall be limited in any event to the liability of the supplier to the Company of such items. Further in respect of such proprietary items the Company relies upon the testing examination and research carried out by the supplier for the purpose of the Health & Safety at Work etc. Act 1974.
LIABILITY
12.1
Save where the Company is shown to have failed to exercise reasonable care in the manufacture and/or supply of the Goods and such failure results in death or personal injury the Company shall not be liable in respect of claims arising by reason of death or personal injury. Further under no circumstances whatsoever shall the Company be liable for consequential indirect or economic loss (including removal or rectification work required in connection with the installation of repaired or substitute Goods) loss of profits damage to property wasted expenditure or cost of mitigation.
12.2
The Company’s liability in respect of direct losses not excluded by the Company pursuant to Clause
12.3
whether in respect of one claim or the aggregate of various claims other than claims for death or personal injury due to negligence on the part of the Company shall not exceed £500,000 and the Purchaser agrees to insure adequately to cover such claims in excess of such amount.
CONFIDENTIAL INFORMATION AND INDUSTRIAL PROPERTY RIGHTS
13.1
All photographs drawings documents confidential records computer software and other information supplied by the Company are supplied on the express understanding that copyright is reserved to the Company and that the Purchaser will not without the written consent of the Company either give away, loan, exhibit or sell any such drawings, documents, records software or other information or extracts there from or copies thereof or use them in any way except in connection with the Goods in respect of which they are issued.
13.2
All claims for alleged infringement in respect of patents trademarks, registered designs or copyright received by the Purchaser must be notified immediately to the Company so that the Company canbe kept fully informed of the conduct of such claims.
PURCHASER’S DRAWINGS
14.1
The Purchaser shall be solely responsible for ensuring that all drawings information advice and recommendations given to the Company either directly or indirectly by the Purchaser or by the Purchaser’s agents, servants, consultants or advisers are accurate correct and suitable. Examination or consideration by the Company of such drawings information advice or recommendations shall in no way limit the Purchaser’s responsibility hereunder unless the Company specifically agrees in writing to accept responsibility.
14.2
The Purchaser shall indemnify the Company from and against all actions, claims, costs and proceedings which arise due to the manufacture Of Goods to the drawings or specifications of the Purchaser where such drawings or specifications are at fault or where it is alleged that they involve an infringement of a patent, copyright, registered design or design copyright or other exclusive right.
DATA AND TECHNICAL INFORMATION
15
The information contained in the advertising sales and technical literature issued by the Company may be relied upon to be accurate in the exact circumstances in which it is expressed. Otherwise any illustrations, performance details, examples of installations and methods of assembly and all other technical data in such literature are based on experience and upon trial under test conditions and are provided for general guidance only. No such information or data shall form part of the Contract unless the Purchaser shall have complied with Condition 1.5 here of relating to statements and representations.
INSOLVENCY
16
If the Purchaser shall become bankrupt or under the provisions of Section 123 of the Insolvency Act 1986 is deemed to be unable to pay its debts or compounds with creditors or in the event of a resolution being passed or proceedings commenced for the administration or liquidation of the Purchaser (other than for voluntary winding up for the purposes of reconstruction or amalgamation) or if a Receiver or Manager is appointed of all or any part of its assets or undertaking (or in the case of the Purchaser residing or operating overseas any of the above events or events similar thereto arising under the laws to which the Purchaser is subject) the Company shall be entitled to cancel the Contract in whole or in part by notice in writing without prejudice to any right or remedy accrued or accruing to the Company.
FORCE MAJEURE
17
In the event of the performance of any obligation accepted by the Company being prevented delayed or any way interfered with by either:
17.1
direction of government war, import or export restriction, industrial dispute, strike, breakdown of machinery or plant, accident, fine or by any other cause beyond the Company’s control, or
17.2
non-delivery by the Company’s suppliers or damage to or destruction of the whole or part of the Goods, the Company may at its option suspend performance or cancel its obligations under the Contract without liability for any damage or consequential loss resulting there from such suspension or cancellation being without prejudice to the Company’s right to recover all sums owing to it in respect of consignments delivered and costs incurred to date.
TOOLS
18
Special tools and jigs made specially and changed in part to the Purchaser remain the sole property of the Company which reserves the right to use such tools and jigs or dispose of them after ompletion of the Contract unless otherwise agreed.
CONSUMER PROTECTION ACT 1987 (“the ACT”)
19.1
In circumstances where the Company supplies parts or products to the Purchaser for incorporation with, or use ancillary to, any composite products to be produced, manufactured, processed or supplied by the Purchaser then:
19.1.1
The Purchaser shall forthwith on demand produce for inspection by the Company copies of all written instructions, information and warnings to be supplied by the Purchaser in relation to the said composite products provided nevertheless that such inspection or right to inspect shall not of itself constitute acceptance or approval on the part of the Company of such instructions, information or warnings, and
19.1.2
the Purchaser shall indemnify, reimburse and compensate the Company for all losses and damages (including costs, expenses and charges for legal actions in which the Company may be involved) that the Company may incur in the event that any claim or claims are made against the Company pursuant to the Act relating to the said composite products of the Purchaser or products in circumstances in which the part or product supplied by the Company was either (i) not the defective part of the said composite product, or (ii) was only rendered the defective part or became a defective product by reason of actions or omissions of the Purchaser, or (iii) was only rendered the defective part or became a defective product by reason of instructions or warnings given by the Purchaser or other supplier of the said composite product or products, or (iv) was manufactured in accordance with the Purchaser’s drawings and specification.
19.1.3
for the purposes of this condition only the word “defective” shall be interpreted in accordance with the definition of “defect” contained in Part 1 of the Act.
19.2
The Purchaser hereby acknowledges that it is under a duty to pass on to its customers (where appropriate) all instructions, information and warnings supplied to it by the Company with the Goods.
INSPECTION
20.1
The Company may agree at its sole discretion to make available at the Purchaser’s request and at the Purchaser’s expense the services of a demonstrator in connection with the Goods supplied but such services are made available without liability for any loss or damage claimed to have arisen by reason of any faulty demonstration or advice and the Company’s sole responsibility shall be to replace any damaged or defective goods as provided by clause 11 hereof.
20.2
Goods supplied by the Company (except proprietary items as defined earlier) are carefully inspected and where practicable submitted to standard tests. If special tests or inspections are required by the Purchaser these will be charged extra. The Company shall give to the Purchaser not less than seven days notice of any special tests required to be performed by the Purchaser and shall permit the Purchaser to be present there at; in the event of the absence of the Purchaser for any reason at the time of such test he shall be deemed to have assented there to and to have accepted the results there of.
20.3
It is the Purchaser’s sole responsibility to ensure that Goods are used or operated in accordance with any safety guidelines issued by the Company as revised from time to time and the Company disclaims any further duty of care which may be owed to the Purchaser.
ATTENDANCE ON SITE
21
If any work including attendance is undertaken by the Company on the Purchaser’s premises in connection with an Order then the Purchaser shall indemnify the Company in respect of all claims or proceedings taken against the Company by any third party including but not limited to the Company’s employees, the Purchaser’s employees, or the employees of any Contractor employed by the Purchaser or the personal representatives or dependents of such employee or other third party in respect of personal injury or damage to property (including damage as a result of fire or explosion) caused by or arising out of work in any manner whatsoever.
LEGAL
22
The Contract shall be governed and interpreted exclusively according to the Law of England and shall be subject to the jurisdiction of the English Courts only save in respect of any injunctive relief which the Company may claim in the Courts of the Country where the Purchaser is resident or operates. In the case of any Order for the export of Goods overseas the Schedule to the Uniform Law on International Sales Act 1967 shall not in any circumstances apply to the Contract and neither shall the limits imposed by the Unfair Contract Terms Act 1977 on the extent to which liability can be excluded.
Q.E.P.Co.U.K./COS/02/05