Terms & Conditions of Business
1.1 Any agreement between the Seller and the Purchaser (“Contract”) for the sale and purchase of castings or other goods (“Goods”) shall comprise solely these terms and conditions (“Terms”) and the provision of any written quotation or acknowledgement of order from the Seller. No statement in the Seller’s brochures or other sales literature shall constitute a representation or a term or condition of any Contract
1.2 No variation of any Contract will be effective unless expressly agreed in writing by the Seller and these Terms shall prevail over any terms and conditions issued by the Purchaser
1.3 In these Terms, “liability in relation to” means “liabilities, losses, damages, costs (including without limitation legal costs on a full indemnity basis and value added tax and other applicable taxes), expenses, actions, claims, proceedings and demands whatsoever arising directly or indirectly out of or in connection with and “writing” shall include e-mail and facsimile transmission. Headings are for convenience only and shall not affect interpretation2. QUOTATIONS
Whilst a quotation will normally remain valid for 30 days it shall not constitute an offer nor bind the Seller until a subsequent order is accepted by the Seller by written acknowledgement
3.1 Prices quoted are net of Value Added Tax (and any other taxes and duties), and of any costs of packaging, transport, insurance, documentation and installation incurred by the Seller all of which where applicable will be charged in addition.
3.2 The Seller may adjust quoted prices at any time before delivery to reflect:
(i) any change to the order made at the Purchaser’s request or any increase in costs or losses arising from any delay or failure of the Purchaser
(ii) any change in legal requirements or safety technology; or
(iii) Any significant change in the cost of labour, raw materials or services to the Seller
4. PAYMENT BY THE PURCHASER
4.1 Payment shall be made within thirty (30) days after the date of invoice and without any set-off, counterclaim or other deduction
4.2 Invoices may be rendered any time after dispatch or collection of the Goods. If the Purchaser fails to take, or delays in taking, delivery the Seller may invoice the Purchaser at any time after it has notified the Purchaser that the Goods are ready for collection or delivery
4.3 Time of payment is of the essence of every Contract. If any payment is not made when due the Purchaser (without prejudice to any other rights of the Seller) shall pay to the Seller interest (as well after as before judgment) on the amount overdue at 4% above the base rate from time to time of Barclays Bank PLC calculated from the date of due payment until the date of actual payment.
5. PATTERNS AND DIES
5.1 Where the Purchaser supplies patterns/dies the Seller shall, and shall be entitled to, assume that such patterns/dies are in good condition, true to drawing and entirely suitable for the Sellers methods of production and for the production of the Goods in the quantities required and the Seller accepts no responsibility for the accuracy or otherwise of the Purchaser’s patterns/dies. For mutual benefit, when new patterns/dies or equipment are to be made, the Seller requires to be consulted
5.2 Replacement of and alterations or repairs to the Purchaser’s patterns/dies or equipment due to normal wear and tear shall be paid for by the Purchaser
5.3 Where patterns/dies are not supplied by the Purchaser, only such patterns/dies as are specifically made for the Purchaser and separately charged in full shall become the property of the Purchaser and only when they and the Goods to which they relate have been paid for in full
5.4 Risk in any patterns/dies or other equipment of the Purchaser shall remain the Purchaser’s sole responsibility at all times Including without limit during delivery to and from and whilst they are held on the Seller’s premises it shall be the Purchaser’s obligation to take out such insurance as it deems necessary.
5.5 The Seller reserves the right to charge the Purchaser for storage of any patterns/dies held at the Seller’s premises and may require the Purchaser to remove any such patterns/dies at any time. All carriage on patterns/dies and equipment supplied by the Purchaser will be at the Purchaser’s expense
5.6 Until all monies owed by the Purchaser under any Contract are paid, the Seller shall have a lien over any patterns/dies or equipment of the Purchaser in its’ possession or any associated company of it and shall have the right to:
(i) put anything over which it has a lien into a saleable state and sell such items as it sees fit, and
(ii) retain from the sale proceeds a sum equal to the total monies due to the Seller from the Purchaser plus any costs and expenses incurred pursuant to (i) above
6. PROPERTY AND RISK
6.1 Until full payment has been made of all monies (whether or not under the particular Contract) owed by the Purchaser to the Seller
(a) property in the Goods shall remain the Seller’s;
(b) the Purchaser shall hold the Goods as the Seller’s fiduciary agent and bailee and shall store the Goods in a way that shows clearly that they are the property of the Seller;
(c) the Purchaser shall not release the Goods to any third party contractor without first giving written notice to each contractor of the Seller’s rights hereunder (including the right to repossess the Goods) being in priority to any rights of such contractor and reserving to the Seller the right to enter such contractor’s premises to recover the Goods;
(d) the Seller may (without prejudice to its other rights) recover or re-sell the Goods or any part of them and may enter upon the Purchaser’s premises by its servants or agents for that purpose; and
(e) upon disposal by the Purchaser of the Goods while such payment is outstanding the Purchaser shall immediately account to the Seller for the proceeds and shall keep all such proceeds separate from any other monies or property
6.2 The risk in the Goods shall pass to the Purchaser
(a) where the Goods are to be delivered to the Purchaser at the Seller’s premises upon the Seller notifying the Purchaser that they are available for collection, or;
(b) where the Goods are to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Purchaser fails to take delivery of the Goods, at the time delivery is tendered or, if the Purchaser requests or causes delay in delivery, the time when the Seller notifies the Purchaser that the Goods are ready for delivery
6.3 If the Seller insures the Goods after the risk has passed, the Purchaser shall at the Seller’s request reimburse the Seller the costs of such insurance
7.1 Delivery of the Goods shall be made-
(a) by the Purchaser collecting the Goods at the Seller’s premises; or
(b) if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place by such method as it selects or by the Seller handing over the Goods to a third party for the purpose of it delivering the Goods to the Purchaser
7.2 If the Purchaser fails to take delivery or to give adequate delivery instructions at the time stated for delivery, then, without prejudice to any other available right or remedy, the Seller may store and/or sell the Goods; the Purchaser shall pay the Seller upon request the amount of any reasonable storage charges and/or any shortfall below the monies payable under the Contract and the amount received by it (net of its sale costs and expenses) on a sale of the Goods
7.3 Delivery times are estimated as accurately as possible but the Seller shall not incur liability in relation to late delivery. If no time for delivery is agreed the Purchaser shall be bound to accept the Goods when they are delivered. The period specified for delivery on the Seller’s quotation;
(a) shall commence only when the Seller acknowledges the Purchaser’s order in writing and the Purchaser has supplied all necessary information, drawings and (if to be supplied by the Purchaser) patterns/dies or equipment;
(b) is exclusive of any period occupied in making, altering, or adapting patterns/dies or in any experimental work connected with the Goods or in providing and obtaining the Purchaser’s approval to example castings if desirable or requested
7.4 The Seller may make deliveries in instalments. In such cases each such delivery shall constitute a separate Contract and the Seller may issue a separate invoice in respect of each such installment but no default by the Seller in regard to any instalment shall entitle the Purchaser to terminate a Contract or a permit any set-off against any payments in respect of any Contract.
7.5 Owing to the difficulty of producing exact quantities of castings, the Seller reserves the right to deliver up to ten per cent (10%) less than or more than the quantities ordered (unless special written agreement has been made to the contrary) and the quoted price for the Goods shall be adjusted pro rata.
8. SAMPLES AND TESTS
8. 1 In instances where the Seller is working to a new or altered pattern, the Seller may submit sample castings for approval before executing the bulk of the order, which will only be commenced on receipt of such approval in writing
8.2 Where only small quantities are required, submission of a sample will be made only if requested in writing by the Purchaser at the time of placing the order
8.3 Samples submitted must be paid for by the Purchaser unless returned to the Seller’s works within one month from the date of dispatch
8.4 Unless otherwise stated, the cost of supplying, machining or testing all test pieces and test certificates required by the Purchaser will be charged in addition to the quoted price
9. INSPECTION AND ACCEPTANCE
The Purchaser shall Inspect and test the Goods upon or as soon as possible after their delivery. The Seller will not accept responsibility for any damage, shortage or loss or accept any other claim in respect of the Goods delivered not conforming with the terms of the Contract UNLESS-
(i) the goods were signed for as “not examined” and have been handled by the Purchaser in accordance with the Seller’s and any applicable carrier’s conditions; and
(ii) within seven (7) days of delivery (or, if shorter, any Third party carriers permitted period) the Purchaser has given written notice to the Seller of any such shortages. loss or other claim (including any loss or damage in transit) in the absence of such notice, the Goods shall be deemed to comply with the terms of the Contract and the Purchaser shall be bound to accept the Goods
10.1 Without prejudice to any other provision hereof the Seller warrants that the Goods shall be free from defects by reason of its faulty workmanship or materials and that if within three (3) months after delivery the Goods prove defective for such reason the Seller shall adjust. repair or replace them as it sees fit, free of charge provided that
(a) The Purchaser has notified the Seller of such defect within the said guarantee period.
(b) The Goods have been properly handled and used in the manner provided for in clause 14.
(c) The defect has not been caused by accident, misuse, neglect, incorrect installation by the Purchaser, its customers, agents or servants or by unauthorised repair or maintenance;
(d) the defect has not arisen from any design, specification, component or material supplied by the Purchaser or a Third party contractor of the Purchaser
(e) upon The Purchaser making a claim under this sub-clause it shall at the Sellers request either return the Goods for inspection or afford access to the Goods to enable the Seller’s staff to inspect and adjust, repair, remove or replace them
(f) the Seller will co-operate with the Purchaser in the assessment of reported defects but the final decision regarding the applicability of this guarantee shall rest with the Seller
10.2 If the Seller requests the Goods to be returned to it the risk in the Goods shall remain the Purchasers at all times and the Goods shall be despatched by the Purchaser at the Purchaser’s expense Costs of carriage on the Goods returned to the Purchaser shall be borne by the Seller where the Seller accepts there has been faulty workmanship or materials on its part. If any claim by the Purchaser is found to be erroneous the Seller reserves the right to make a reasonable charge for the costs incurred by it in investigating such claim
11. EXCLUSION OF LIABILITY
11.1 Without prejudice to clause 10 and save as agreed expressly in writing, or implied by s.12 of the Sale of Goods Act 1979 or s.2 of the Consumer Protection Act 1987, or in respect of any liability for death or personal injury resulting from negligence (as defined in The Unfair Contract Terms Act 1977).
(a) the Seller shall incur no obligations or liabilities to the Purchaser in relation to the Goods and all warranties. conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law;
(b) the Seller shall not be liable to the Purchaser for any loss, injury or damage of any nature, whether direct. indirect. incidental. consequential or otherwise (including without limit. loss of profit. financing costs. liability to third parties or otherwise) arising out of or relating to the supply, manufacture, packing, delivery, storage, use or resale of the Goods or any default in respect of the foregoing whether such loss results from negligence, breach of warranty or otherwise; the Purchaser acknowledges that this is reasonable and reflected in the price and shall accept risk and/or insure accordingly
11.2 The Purchaser shall not rely upon any representation concerning the Goods unless made by the Seller in writing in the Contract documents
11.3 The Purchaser shall indemnify the Seller against any liability in relation to the Goods or anything incorporating the Goods or the use of the same save only if it is established that such liability directly results from a defect in the Goods by reason of the Sellers negligent design. workmanship or use of materials
11.4 If the Seller fails to deliver the Goods in compliance with any agreed specifications. its liability shall be limited to refunding any monies paid in respect of such Goods.
12. TERMINATION OF CONTRACT
(a) the Purchaser fails to make any payment to the Seller as it falls due (under any Contract); or
(b) the Purchaser otherwise breaches any Contract and the breach is not remedied within fourteen (14) days; or
(c) The Purchaser is, or is deemed to be, or threatens to become, insolvent or bankrupt or the Seller has grounds for believing that the Purchaser will fail to discharge its obligations under any Contract when due or any steps are taken with a view to
(i) proposing any composition, scheme or arrangement involving the Purchaser and its creditors;
(ii) obtaining an administration order or appointing any administrative or other receiver or manager in relation to, or putting in force any legal process against the Purchaser or any of its property;
(iii) enforcing any charge or other security over the Purchasers property or repossessing any goods in its possession under any agreement;
(iv) winding up or dissolving the Purchaser; or
(d) where control of the Purchaser passes or is likely to pass from the present shareholders, owners or controllers to other persons whom the Seller in its absolute discretion regards as unsuitable or, being an individual or partnership, where he or any partner dies.
THEN the Purchaser shall be deemed to have repudiated each and every Contract with the Seller which may (without prejudice to its other rights) do any of the following
(i) accept the repudiation and treat all or any Contracts with the Purchaser as terminated;
(ii) revoke any express or implied authority given to the Purchaser to sell or use any of the Goods in which the property has not passed to the Purchaser.
(iii) require the Purchaser to deliver to the Seller any relevant goods, or enter the premises when they are or are thought to be and repossess them without liability for any resulting damage and the Purchaser shall indemnify the Seller against all liability in relation thereto
(iv) resell any relevant goods;
(v) declare any amount, owed by the Purchaser under any Contract immediately due, payable and interest-bearing under clause 4;
(vi) suspend and withhold further performance under any Contract until all sum, owing by the Purchaser have been paid or until payment in advance of all monies payable under any Contract;
(vii) proceed against the Purchaser for monies due under any Contract.
(viii) appropriate any payment made by the Purchaser to such Goods supplied under any Contract as the Seller thinks fit (not withstanding any purported appropriation by the Purchaser)
12.2 The Purchaser shall forthwith notify the Seller in writing by the most immediate means of any event mentioned in sub-clauses 12.1(a) to (d) inclusive
13. FORCE MAJEURE
To the extent that its ability to perform its obligations hereunder is limited, delayed or prevented by any reason not reasonably within its control (including without limitation trade dispute. fire or other natural disaster, equipment failure, power, raw material or labour, shortage, law rule or act of any government or other public authority, hostilities, transportation delays or the refusal or delay in granting any necessary licence or permit)
the Seller shall he released without penalty from performance of any Contract. In the event of such prevention the Purchaser shall pay a sum equal to the cost, to the Seller of performing the Contract to the date of that event and the Sellers liability shall be limited to repayment of any sum paid in respect of undelivered Goods, less such costs
14. USE OF GOODS
14.1 The Purchaser shall ensure that the Goods are used solely for the purpose for which the Seller was informed in writing they were to be used for, in the absence thereof the purpose for which the Seller reasonably understood they were to be used and were designed and supplied for, and the Purchaser shall procure the agreement or understanding of any third party to whom the Goods are supplied to use them only for such purposes and in such manner. It shall be the Purchasers sole responsibility to inform the Seller of any special or unusual use to which the Goods are to be put or any strengths or resistances they are to have and in the absence of being so informed by the Purchaser the Seller shall have no liability in respect of the Goods not being fit for any particular purpose or not being of a particular merchantable quality
14.2 The Purchaser shall procure that all third parties who use or may be affected by or rely upon the Goods are given full and clear warning of any inherent hazard, associated with the Goods or limitations of their effectiveness, including both latent and patent hazard, and limitation,
15. THIRD PARTY CLAIMS
When the Purchaser has supplied any specifications, design, information or component, it shall indemnify the Seller against all liability in relation to any third party claims or rights incurred or sustained by the Seller as a result of the supply of any Goods in accordance therewith.
The Seller’s rights shall not he prejudiced by any indulgence, or forbearance extended to the Purchaser. No waiver by the Seller of any breach shall operate as a waiver in respect of any subsequent breach.
The Purchaser shall not assign mortgage, charge. sub-let or otherwise dispose of any Contract or any rights thereunder in whole or in part without the Seller’s prior written consent
All notices or other communication under a Contract shall be in writing addressed to either the addressee’s registered office or principal place of business, (or such other address, as may have been notified for the purpose to the party giving notice) or to the address of the addressee to which normal communication, relating to the Contract have been sent in the ordinary course
19. APPLICABLE LAW
19.1 All contracts shall be governed and construed in accordance with English law and the Purchaser irrevocably submit to the non-exclusive jurisdiction of the courts of England
19.2 Any reference in these Terms to a statute or a provision of a statute shall he construed as a reference to that statute or provision as amended. re-enacted or extended at the relevant time
Any provision of a Contract which is wholly or partly invalid or unenforceable for any purpose shall he deemed severed for that purpose but shall remain valid and enforceable for any other purpose.