Terms and Conditions of Sale
In these Conditions the following expressions shall have the following meanings:
2.1 These Conditions alone shall govern and be incorporated in every Contract for the sale of Goods made by or on behalf of the Company. They shall apply in place of and prevail over any terms or conditions contained or referred to in any documentation submitted by the Buyer (including the Buyer’s terms and conditions of purchase), in correspondence or elsewhere, or implied by trade custom, practice or course of dealing.
2.2 Acceptance by the Buyer of delivery of the Goods shall be deemed to constitute unqualified acceptance of these Conditions.
2.3 A variation of these Conditions is valid only if it is in writing and signed by a director or authorised representative of the Company.
2.4 Each party shall comply with all laws, enactments, regulations, and all regulatory policies of any regulatory authority, in each case in whichever jurisdiction, in relation to sanctions or embargoes, in each case which are applicable to such party or which may be applicable to the sale, purchase, export or import of the Goods under the Contract (“Regulations”).
2.5 The Buyer shall not do any act or fail to do any act, which causes the Company to be in breach of the Regulations.
2.6 The Buyer shall not use Goods in relation to nuclear, biological or chemical weapons or for missiles capable of delivering such weapons, nor knowingly re-sell or otherwise provide (directly or indirectly) to third parties for use in relation to, or to re-sell to other parties for the use in relation to nuclear, biological or chemical weapons or for missiles capable of delivering such weapons.
4. DESCRIPTION OF GOODS
6. TERMS OF PAYMENT
7.1 All times or dates given for delivery or despatch of the Goods (or estimated lead times) in any Quotation, Acknowledgement of Order or elsewhere are approximate only and not of any contractual effect. The Company is not liable to the Buyer for failure to deliver on a particular date or dates. Time for delivery should not be of the essence of the Contract and shall not be made so by service of any notice. If no delivery dates are specified, delivery shall be within a reasonable time.
7.2 Subject to the other provisions of these Conditions, the Company shall not be liable for any failure to deliver on a particular date nor shall any delay entitle the Buyer to terminate or rescind a Contract unless such delay exceeds 60 days.
7.3 Costs for delivery will be as notified by the Company to the Buyer in writing and delivery shall be at the delivery address specified on the Acknowledgement of Order unless otherwise agreed by the Company in writing. Delivery outside the UK shall be EXW (Incoterms 2010) (or as otherwise confirmed by the Company in writing).
7.4 If for any reason the Buyer refuses or fails to take delivery of any of the Goods when they are ready for delivery or fails to take any action necessary on its part for delivery of the Goods (for example, collection of the Goods by the Buyer’s carrier), the Company is entitled to terminate the Contract with immediate effect, to dispose of the Goods as the Company may determine and to recover from the Buyer any loss or additional costs incurred as a result of such refusal or failure (including storage costs from the due date of delivery).
7.5 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s premises shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
7.6 Where the Goods are handed to a carrier for carriage to the Buyer or the United Kingdom port for export any such carrier shall be deemed to be an agent of the Company and not of the Buyer for the purposes of Sections 44, 45, and 46 of the Sale of Goods Act 1979.
7.7 The Buyer agrees that Section 32(3) of the Sale of Goods Act 1979 shall not apply to Goods sent by the Company.
7.8 The Company accepts no liability for:
7.8.1 non-delivery of Goods;
7.8.2 loss of or damage of the Goods occurring prior to delivery; or
7.8.3 any claim that the Goods are not in accordance with the Contract
unless claims to that effect are notified in writing by the Buyer to the Company (and in the case of claims for non-delivery loss or damage, with a copy to the carrier if the Company’s own vehicles have not been used to deliver the Goods) within (i) 10 days of delivery for loss damage or non-compliance with the Contract or (ii) 10 days of the date of the invoice for non-delivery. In the case of damage during transit or on delivery, the Buyer shall provide sufficient evidence of damage to the Company to enable the Company to investigate.
7.9 In the event of a valid claim (with evidence, where appropriate) for non-delivery, loss, damage or non-compliance with the Contract, the Company’s liability shall be limited to the costs and expenses incurred by the Buyer in, at its option, either repairing the Goods or obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
7.10 The Company reserves the right to deliver the Goods in instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
7.11 If the Buyer shall fail to give notice in accordance with clause 7.8 above the Goods shall be deemed to be in all respects in accordance with the Contract. Without prejudice to earlier acceptance by the Buyer it shall be bound to accept and pay for the same accordingly.
7.12 The Buyer shall meet the cost of any special packaging, or special or expedited delivery requested by the Buyer or any packaging rendered necessary by delivery by any means other than the Company’s normal means of packaging and delivery. The Buyer shall, unless otherwise agreed, be solely responsible for the disposal of all packaging in accordance with all regulations (whether statutory or otherwise) relating to the protection of the environment.
7.13 The Buyer shall inspect and test the Goods immediately upon receipt and in any event prior to applying any process to, using, amending, treating or otherwise changing the Goods. In the event that the Buyer fails to inspect and test the Goods in accordance with this clause 7.13 then, notwithstanding any other terms in these Conditions, the Company shall be under no liability to the Buyer in respect of any defect whatsoever in the Goods. The time periods for notifying the Company of any defects are as set out in clause 7.8.
Goods supplied in accordance with the Contract cannot be returned without the Company’s prior written authorisation. Duly authorised returns shall be sent to the Company’s Premises at the Buyer’s expense.
9. PASSING OF TITLE AND RISK
11. LIMITATION OF LIABILITY
12.1 The Company may terminate the Contract at any time by giving written notice to the Buyer if: or
12.1.1 the Buyer is in breach of clause 2.4, 2.5 or 2.6;
12.1.2 the Buyer is in material breach of an obligation under this Agreement and fails to remedy that breach within 7 days of being asked to remedy it by the Company;
12.1.3 the Company considers that performance of its obligations under the Contract will or may cause the Company, its officers or employees or any subsidiary of the Company, to breach any Regulation;
12.1.4 the Buyer passing a resolution for its winding up or a court of competent jurisdiction making an order for the Buyer’s winding up or dissolution;
12.1.5 the making of an administrative order in relation to the Buyer or the appointment of a receiver over, or an encumbrancer taking possession of or selling, an asset of the Buyer;
12.1.6 the Buyer making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally; or
12.1.7 the Buyer becoming unable to pay its debts when they fall due.
12.2 Upon termination of a Contract pursuant to clause 12.1 any indebtedness of the Buyer to the Company becomes immediately due and payable and the Company is relieved of any further obligation to supply Goods to the Buyer pursuant to that Contract.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 All right, title and interest in and to any patents, trade marks, designs, applications for any of those rights, trade and business names, copyrights, know-how, rights in designs and inventions, rights in databases and any other similar rights (“Intellectual Property Rights”) created by or on behalf of the Company during the design, manufacture and supply of the Goods and all renewals and extensions thereof shall be the property of and vest in the Company (unless otherwise agreed in writing), and the Buyer assigns, including by way of present assignment of future rights, such Intellectual Property Rights to the Company with full title guarantee and free from all encumbrances and other rights of whatever nature exercisable by any third party, together with the right to take action for any past, present and future damages and other remedies in respect of any infringement or alleged infringement of such Intellectual Property Rights. The Buyer waives any moral rights in relation to the Intellectual Property Rights.
13.2 All right, title and interest in and to any Intellectual Property Rights owned by or licensed to a party prior to the Contract is and shall remain the exclusive property of the party owning it (or, where applicable, the third party from whom it’s right to use such Intellectual Property Rights has derived).
14. LIABILITY TO THIRD PARTIES
14.1 The Buyer shall indemnify the Company against all losses, liabilities, costs, expenses and damages which the Company incurs as a result of the carrying out of any work required to be done on or to the Goods in accordance with the requirements or specifications of the Buyer involving any infringement of the rights of any third party (including infringement of Intellectual Property Rights).
14.2 The Buyer shall notify the Company immediately of any claim made or action brought or threatened alleging infringement of the rights of any third party. The Company shall have control over and conduct any such proceedings in such manner as it shall determine. The Buyer shall provide all such reasonable assistance as the Company may request. The cost of any such proceedings shall be borne in such proportions as the parties shall determine.
No statement, description, information, warranty, condition or recommendation contained in any website, catalogue, price list, advertisement or communication, or made verbally by any of the agents, distributors or employees of the Company shall be construed to enlarge, vary or override in any way any of these conditions.
16. FORCE MAJEURE
16.1 The Company shall not be in breach of the Contract nor liable for its delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure results from or is otherwise connected to events, circumstances or causes beyond its reasonable control. In such circumstances the Company shall be entitled to: (i) a reasonable extension of the time for performing such obligations; (ii) reduce the amount of Goods delivered; or (iii) cancel the Contract immediately by giving written notice to the Buyer, if it is prevented from, hindered from or delayed in manufacturing, obtaining or delivering the Goods by normal route or means of delivery.
16.2 For the purposes of this clause 16, circumstances beyond the Company’s reasonable control include but are not limited to: strikes, terrorist attack, civil war, civil commotion or riots, threat of or preparation for war, armed conflict, pandemics or epidemics (including any impact of the Covid-19 pandemic), imposition of sanctions and/or embargo (including impacts of BREXIT), or breaking off of diplomatic relations, any law or any action taken by a government or public authority (including without limitation those laws and guidelines introduced by the Covid-19 pandemic, imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent to either party), lock-outs, accidents, war, fire, reduction in or unavailability of power at manufacturing plant, breakdown of plant or machinery or shortage or unavailability of raw materials from normal source of supply (a Force Majeure Event).
17.1 In these Conditions:
17.1.1 headings are for identification and indexing purposes only and they shall not affect the construction or interpretation of these Conditions;
17.1.2 words importing the singular meaning shall include the plural meaning and vice versa;
17.1.3 references to a person shall include natural persons, corporate or unincorporated bodies (whether or not having separate legal personality) and that person’s legal and personal representatives, successors and permitted assigns and references to a party shall mean either the Company or the Buyer as the context requires and parties shall mean both of them; and
17.1.4 the word including, include, includes and for example will be construed without limitation unless inconsistent with the context and business days are all days other than Saturdays, Sundays or English public holidays.
17.2 The Company may at its discretion sub-contract any of its obligations under this Agreement to any person.
17.3 Unless otherwise stated in these Conditions, a Contract (and any documents referred to in it) constitutes the entire understanding between the parties in relation to its subject matter and supersedes all prior representations, communications, negotiations and understandings concerning the subject matter of the Contract. No party has relied on any warranty or representation except as expressly set out in the Contract.
17.4 The Buyer may not assign or transfer or purport to assign or transfer any of its rights or obligations under a Contract without first having obtained the Company’s written consent. The Company may assign a Contract or any part of it to any person.
17.5 If any clause of a Contract, (or part of a clause), is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other clauses shall remain in force.
17.6 If any invalid, unenforceable or illegal clause of a Contract would be valid, enforceable or legal if some part of it were deleted, the clause shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
17.7 Nothing in a Contract is intended to confer on any person any right to enforce any clause of a Contract which that person would not have had but for the Contracts (Rights of Third Parties) Act 1999.
17.8 The failure by the Company to exercise or delay by the Company in exercising any right, power or remedy provided by a Contract or by law does not constitute a waiver of such right, power or remedy or a waiver of any other rights, powers or remedies. No single or partial exercise of a right, power or remedy provided by a Contract shall prevent any further exercise of the right, power or remedy or the exercise of another right, power or remedy.
17.9 Each right or remedy of the Company under a Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not.
17.10 A Contract is governed by, and shall be construed in accordance with, the laws of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to hear and decide any suit, action or proceedings, and to settle any disputes, which may arise out of or in connection with a Contract.