1. Definitions and Interpretation
In these terms and conditions, unless the contract shall otherwise require, the following words and expressions shall have meanings hereinafter mentioned:
“The company” means the company from whom the customer agrees to purchase the goods referred to overleaf
“The customer” means any person, body of persons, firm or company with whom the company enters into a contract for the sales of goods by the company.
“The contract” means the contact of the sale of Goods pursuant to these terms and conditions.
“Terms and conditions” means these terms and conditions of sale and any additional terms and conditions agreed in writing between the Company and the Customer.
“Goods” means the goods the subject of the contract end the context so admits any instalment thereof;
“An export sale” means a contract involving the export of goods from the United Kingdom irrespective of the method by which the export is carried out
“The premises” means the company’s premises from which the goods are dispatched to the customer or such other place as maybe notified by the company to the customer
“Specified” means (as the context admits) either stipulated in writing by the company or stipulated by the customer in writing signed by, or whose acceptance is evidenced by writing signed by, the company and cognate words shall be constructed accordingly;
“The price” means the figure(s) specified in the company’s acknowledgement of order, or, in the event that no acknowledge, or order is issued by the company in the company’s quotation or otherwise stated by the company.
“Quotation” means a written quotation issued by the company to the customer in respect of the sale of goods by the company;
“Acknowledgement of order” means written confirmation of the customer order;
“Delivery note” means the note issued to the customer upon delivery of the goods; “Delivery” means delivery of the goods in accordance with these terms and conditions
(i) Orders are accepted by the Company only on these Terms and Conditions (which form part of the Contract between the Company and the Customer) and to the exclusion of all other terms and conditions (unless expressly accepted in writing by the Company). Without being obliged to give reason therefore, the Company reserves the right to refuse any order, if the Customer’s order is inconsistent with these terms and conditions. The Company’s acceptance of the Customer’s order by the issue of an acknowledgement of order or delivery note or delivery takes place or in the case of orders made over the telephone, verbal acceptance by the Company of the Customer’s order, shall constitute acceptance of an offer by the Customer on these Terms and Conditions.
(ii) The Contract between the Company and the Customer shall be constituted by the earlier of the issuing by the Company of its Acknowledgement of Order or Delivery Note or Delivery takes place or in the case of orders made over the telephone, verbal acceptance by the Company of the Customer’s order, there shall not be a binding contract between the Company and the Customer.
A Quotation does not constitute an offer by the Company to supply goods and every acceptance of any Quotation by the Customer shall be deemed an offer by the Customer to purchase goods from the Company and will not be binding on the Company until the Company has accepted such order pursuant to Clause 2 (ii) above. Unless previously withdrawn by the Company, which may be done without prior notice, any Quotation is open for acceptance for seven days only from the date thereof, unless otherwise agreed by the Company in writing.
4. Limits of Quotation
The Company’s Quotation includes only such goods as are specified therein. Any quotation given by the company shall not place the company under any duty or liability to the customer and shall not be deemed to form part of the contract nor shall it constitute a representation by the company including the customer to enter into or finalise a contract.
(i) The customer’s acceptance of the company quotation must be accompanied by sufficient information to enable the company to proceed with the order forthwith; otherwise the company shall be at liberty to amend the quotation prices to cover any increases in cost which have taken place after acceptance.
(ii) The company shall not be bound to accept charges to the order after acceptance but shall endeavour subject to agreement of any necessary revision to the price and estimated delivery date, to meet any reasonable request.
(iii) The company only accepts responsibility for compliance with any relevant codes, regulations, standard or rules referred to in the company’s acknowledgement of order.
6. Credit to the Customer
If the company so requests the customer shall supply such details as to creditworthiness as the company may consider necessary.
7. Particulars of Goods etc.
(i) While all reasonable care is taken in preparing the descriptive and technical specifications and particulars of weights and dimensions submitted with the company’s quotation and technical and other descriptions contained in any of the company’s catalogues, brochures, advertisements, or other documents or publicity material, the accuracy of such particulars and descriptions is not guaranteed and they shall not (save where the contrary is expressly confirmed in the contract) form part of the contract nor shall be deemed to constitute a representation including the customer to enter into the contract.
(ii) The company reserves the right at any time to vary, alter or amend any, descriptions, prices, measurements or specifications contained in its catalogues, brochures, advertisements or other documents and publicity material.
(i) Notwithstanding that a sample of the goods may have been exhibited to and inspected by the customer it is hereby agreed that such a sample was so exhibited and inspected solely to enable the customer to judge the quality of the bulk and not so as to constitute a sale by sample. The customer shall take the goods at the customers own risk as to their corresponding with the said sample.
(ii) Any samples submitted to the customer and not returned within fourteen days from the date of receipt by the customer shall be paid for by the customer.
(i) Any delivery or dispatch date included is the contact shall be accepted as an estimate only, unless otherwise agreed in writing, but it is expressly stated that any such date shall not form an essential part of the contract and the company shall not be liable for any loss incurred by the customer by reason of any delays in delivery caused by factors beyond the company’s reasonable control.
(ii) Unless otherwise specified, delivery of the goods shall be made at the premises. Where any place other than the premises is specified for delivery of the goods, all costs of carriage and insurance and all taxes, duties and imports of whatever nature and by whomsoever imposed shall be payable by the customer.
(iii) Where delivery of the goods is made by the company to a carrier, the carrier will be deemed to be acting as customer’s agent and delivery to the carrier shall be deemed to constitute delivery by the company to the customer. The customer may authorise the company in writing to engage a carrier and issue delivery instructions on the customer’s behalf. The customer acknowledges that the company shall have no liability if the goods are damaged or lost in transit.
(iv) In the event of the customer failing to accepted delivery of the goods then the company shall store them a customer’s expense. After the expiry of fourteen days from the date of failure by the customer to accept delivery of the goods (and without precedence to the companies other rights and remedies) the company shall be entitled at sole discretion to sell the goods to the account of the customer and apply the sale proceeds in the diminution of any accounts due to the company by the customer under the contract of any other amounts due to the company by the customer.
10. Delivery in Instalment
We may deliver goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the applicable contract. Each instalment delivery will be a separate contract and no cancellation or termination by either party of any one contract relating to an instalment will entitle you to repudiate or cancel any other contract or instalment.
Each invoice raised by us to you will be payable in full, without deduction or set off, in accordance with our standard payment terms. You agree that you will not be entitled to set off any claim against an invoice:
(i) Unless you have notified us in writing within 14 days of delivery of any defect or shortage in the goods delivered;
(ii) Any claim arising out of the supply of goods under a contract other than that which gave rise to the debt forming the subject matter of the invoice.
The customer shall only be entitled to reject goods that are found not to be in accordance with the contract and shall not under any circumstances be entitled to reject goods after a period of 3 working days has elapsed from date of delivery or in the case of latent defects within 7 days after the latent defect has become apparent or should reasonably apparent to the customer. The customer shall be obliged to give notice in writing to the company of its reasons for rejection of the goods.
The following warranty is given by the company and accepted by the customer as fair and reasonable and as far as is permissible at law to the exclusion of any statutory, common law contractual rights relating to quality of the goods supplied in terms of the quotation:
(i) Save as provided in this clause, the company shall not be under any liability whether in contract, delict (tort) or otherwise in respect to defects in the goods supplied or for any injury (other than death or personal injury caused by the companies negligence) damage of loss resulting from each defect;
(ii) The company shall have no liability in respect to any damage, loss, personal injury or death resulting from the failure to observe any information of advice relating to the goods supplied or to be supplied by the company, and the customer agrees to indemnify the company in respect to any claim brought against the company in respect to any such damage, loss, personal injury or death. Nothing in the contract shall move liability on the part of the company for death of injury cause by its negligence.
(iii) The goods comply with the description in the contract subject to the standard tolerance relating to weight and dimensions;
(iv) The goods are of satisfactory quality;
(v) Save as provided herein, there are excluded from the contract as far as is permissible by law all representations, conditions, warranties and terms, whether expressed or implied, as to the quality, condition or fitness for any purpose of the goods.
(vi) The maximum liability of the company however arising from or in connection with the sale of the goods to the customer (whether for breach of contract, negligence misrepresentation or otherwise) shall be limited to the replacement of any goods which fail to comply with the contract or refund of any money paid by the customer in respect of any rejected goods not replaced by the company except in respect of death and personal injury caused by the companies negligence;
(vii) The company shall not in any circumstance be liable to the customer or to any other person for and consequential or indirect loss or damages (including damages for loss of profit) arisen directly or indirectly in connection with the sale of the goods.
(i) Prices quoted are net and do not include packaging or the amounts of ant VAT or any other sales tax or excise duties paid or payable by the company which extra charges shall be added to the price and be payable by the customer.
(ii) The price stated the company in the contract is based on information available to the company at the date thereof. If between the date of the contact and date of delivery there shall be any variation in the cost of materials, labour or otherwise, the company may at its absolute discretion adjust the price to take account of such variation.
(iii) The tonnage weight charged by the company may include an allowance for all wasted materials remaining after completion of any production process.
If the company incurs extra expenditure as a result of variation of suspension of work caused by the customers instructions or lack of instructions, interruptions, delays, overtime, unusual hours, mistakes or otherwise as a result of the customers action or for any other cause whatsoever beyond the companies control a reasonable sum in respect to such extra expenditure shall be added to form part of the price and be paid for accordingly.
15. Statutory and Other Regulations
If the cost to the company of performing it obligations under the contract shall be increased or reduced by reason of amendment after the date of quotation of any law or any order, regulation, or by-law having the force of law that shall effect the performance of the companies obligations under the contract, the amount of such increase of reduction shall be added of deducted from the price as the case may be.
(i) The price is full including taxes, duties and charges will be due by the end of the month following the month of delivery.
(ii) Where the contract for delivery by instalments and for progress payments the company shall be entitled to withhold release of any subsequent instalments of goods until the customer has paid for every previous instalment released by the company. If payment is not made in accordance with this clause all monies owed by the customer to the company in respect of any order shall immediately become due and payment recoverable forthwith.
(iii) In the event that payment of the price in full is not received by the due date interest thereon shall be chargeable on the outstanding amount at the rate of 5% per annum above the Bank of Scotland base rate from the due dates until payments received in full.
17. Set Off
The company or any company of which the company has control (as defined in Section 840 of the income and corporation taxes act 1988) or any subsidiary or holding company (as defined in section736 of the companies act 1985) shall have the right to set off any sum owing to the company by the customer or any controlled company or subsidiary or holding company of the customer, against any sums due by the company or buy any such controlled or holding or subsidiary company of the company to the customer
18. Property and Risk
This clause shall apply to all goods supplied to the customer.
For the purposes of this clause “associated company “shall mean holding or subsidiary company (as defined in section 736 of the company’s act 1985) or any subsidiary of such holding company.
(i) Until such time as the customer has paid in full all monies (including any interests and charges) due by the customer to the company and any associated company, property to and title in the goods shall remain with the company. The monies shall not be treated as paid until any instalment of payment has been met on presentation or otherwise honoured in accordance with its terms. Payment shall be applied to invoices in the order in which they are issued and to the goods in the order in which they were listed on the invoices.
(ii) Until payment of all such sums referred to in clause 18(I) hereof has been made in full to the company, the customer shall,
(a) Store the goods separately so that they are readily identifiable and clearly marked as the companies goods;
(b) If the customer fails to pay any sums due in clause 18(I) hereof by the date of payment, in addition to any other remedies available to the company under these terms and conditions or otherwise, the company shall be entitled to re-possess the goods. The customer will assist and allow the company to re-posses the goods and for this purpose admit or procure entry to the premises in which the goods are situated.
(c) If the customer becomes apparently involvement of compounds with his or its creditors or has a liquidator, receiver or administrator appointed over all or any of its assets or carries out or undergoes any analogous act or proceeding under foreign law prior to property in the goods passing as afore said, of if the customer is in material breach of these terms and conditions the customers right to be entitled to re-possess the goods;
(d) The company shall be entitled to enter the premises whether lock fast or otherwise, in which it believes the goods are situated for the purpose of repossessing and to repossess the goods.
(iii) Notwithstanding the foregoing, the risk of damage to or loss or destruction of the goods shall pass to the customer at the date of delivery
(iv) No claim for shortage of delivery of the goods will be accepted unless separate written notice is given to the carrier concerned (if appropriate) and to the company within four days of the receipt of the goods, followed by a complete claim within fourteen days of the receipt of the goods. In the case of non-delivery a separate written notice must be given to the carrier concerned (if appropriate) and to the company within fourteen days of the delivery date specified by the company. If liability is accepted by the company under this clause the company will rectify the goods or pay the customer compensation as the company in its absolute discretion considers to be reasonable.
19. Sales to Third Parties
Subject always to clause 18 (ii) (c) of these terms and conditions, the customer shall be entitled to resell or use the goods in the ordinary course of its business.
20. Cancellation, Termination, Lien and Damages
For the purposes of this clause “associated company” shall mean any holding or subsidiary company (as defined in section 736 of the companies act (1985) or any subsidiary of such holding company.
(i) The customer’s cancellation of any order will be of not effect unless the company has previously agreed to such in writing.
(ii) Without prejudice to any other right available to it, the company and any associated company and the customer may terminate the contract if:
(a) The customer after due warning from the company commits or continues to commit a material breach of the customers obligations under any contract with the company, or
(b) Any arrestment or any other legal process is carried out upon any of the customers assets, or
(c) The customer makes or offers to make any arrangement or composition with creditors or becomes bankrupt or apparently insolvent or is sequestrated, or if any petition or receiving order in bankruptcy shall be presented against it, or if the customer is a company, any resolution or petition for winding up the customer shall be presented or a liquidator, receiver, manager, administration, judicial factor, or committee shall be appointed over the customers undertaking property and assets or any part there of the customer carries out or undergoes any analogous act proceeding under foreign law.
(iii) Without prejudice to any other rights available to it, the company shall in the event of cancellation or termination of the contract, be entitled to recover from the customer:
(a) The quoted value of any work completed on the customers behalf at the date of the cancellation or termination;
(b) The value of any such work begun but not completed as such date, such value to include the cost of material, labour, overheads and a fair profit as determined by the companies accountant whose decision shall be conclusive and binding on both parties; and
(c) The cost of the goods and materials ordered by the company pursuant to the contract for which the company has to pay.
(iv) The company shall have in addition to any other remedy, a general lien on all goods ordered by or belonging to the customer, which may be under the company’s control (although such goods or some of them may have been paid for) for all monies due to the company by the customer under any order and may at the company’s discretion sell such goods and apply all monies received in respect thereof in reduction of all those monies due to it by the customer. If the customer does not discharge the lien within eight days of it being imposed by the payment of all amounts due, the company shall have the right to sell the goods to the lien and to deduct from the net proceeds of the sales all amounts due buy the company.
(v) In the event of industrial or trade disputes, accidents, fire, inclement weather, flood tempest, war, acts of god or delay in delivery of materials or any other cause or contingency whatsoever beyond the reasonable control of the company but affecting the company’s supply of goods the contract may be terminated or suspended by the company at its sole discretion. Such cancellation or suspension shall not constitute a breach by the company of its obligations under the contract and the company should not be liable to the customer for any delay or damage caused by reason of such cancellation or suspension. At any time after a suspension arising under this clause the company may exercise its right to terminate the contract.
The customer shall hot assign any benefit or burden under the contract without the companies prior consent in writing which may if given be on such terms as to guarantee or indemnity or otherwise as the company may think fit. The company shall be entitled to sub-contract or assign its rights and/or obligations under the contract.
Any notice given under or pursuant to the contract may be sent by hand or by post or by registered post or by recorded delivery service or transmitted by facsimile or other means of communication resulting in the receipt of a written communication in permanent form and if so send or transmitted to the address of the relevant party as shown on the contract documents or such other addresses as one party may by notice to the other have substituted therefore shall be deemed validly and effectively given on a day when in the ordinary course of the means of transmission it would be first received by the addressee in the normal business hours.
If any paragraph or sub-paragraph (of part thereof) of these terms and conditions shall be found to be invalid, ineffective or unforceable, such invalidity, ineffectiveness or unenforceability shall not affect any other part thereof.
24. Legal Construction
(i) The heading of these terms and conditions are for reference only and shall not affect the constitution hereof.
(ii) Unless otherwise agreed in writing, the contract shall be governed and construed in accordance with the law in Scotland and the parties hereby submit to the nonexclusive jurisdiction of the Scottish courts.
No waiver by the company of any breach of the contract shall be considered as a waiver of any subsequent breach of the same on any other provision.
26. This contract is divisible. Each delivery made hereunder:
(i) Shall be deemed to arise from a separate contract, and
(ii) Shall be invoiced separately and any invoice for a delivery shall be payable in full in accordance with the terms of payment provided for herein without reference to and notwithstanding any defect or default in the delivery of any other instalment.