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1.
GENERAL
In
these General Conditions of Sale, the "Company"
means [.............................];
the "goods" means any item of whatsoever nature
which is to be sold or supplied by the Company including
services; the "Purchaser" means the person firm
or body corporate which buys or has agreed to buy the goods.
These
General Conditions of Sale shall apply to and form part
of every contract of sale entered into by the Company. All
orders are accepted and executed on the understanding that
the Purchaser is bound by these General Conditions of Sale
which shall govern the contract to the exclusion of any
other terms and conditions subject to which any such order
is accepted or purported to be accepted, or any such order
is made or purported to be made, by the Purchaser.
No contract
of sale shall come into being unless and until the Purchaser
has accepted these General Conditions of Sale either expressly
or by implication.
2. LIMITS OF CONTRACT
The contract includes only such goods, accessories and
work as are specified in the quotation or acknowledgement
accompanying these General Conditions of Sale.
3. PRICES
(a) The price payable for goods shall unless otherwise
stated by the Company in writing be the list price of the
Company current at the date of despatch and in the case
of an order for delivery by instalments the price payable
for each instalment shall be the list price of the Company
current at the date of despatch of such instalment.
(b) Unless otherwise expressly stated to be firm
for a period the Company's prices are subject to variation
to take account of variations in wages, materials and other
costs calculated by using the BEAMA contract price adjustment
clause and formulae. The Company accordingly reserves the
right by giving notice to the Purchaser at any time before
delivery to increase the price of the goods by the amount
of any increase in such costs after the price is quoted.
(c) All prices are exclusive of Value Added Tax and
this will be charged at the applicable rate and recoverable
by the Company in addition to the price.
(d) All invoiced price discrepancies must be notified
by the Purchaser to the Company within 14 working days of
the date of invoice.
4. PAYMENT
(a) Unless otherwise agreed in writing payment is due
without deduction on or before the last working day of the
month following the date of the invoice.
(b) Where the contract provides for delivery in instalments
each instalment shall be considered as a separate contract
of sale.
(c) Time for payment shall be of the essence of the
contract.
(d) Without prejudice to any other rights it may
have the Company is entitled to charge interest at 8% above
the current Bank of England base rate or such other rate
of interest as shall be determined under the Late Payment
of Commercial Debts (Interest) Act 1998 on any overdue payments.
(e) Additionally and without prejudice to its other
rights the Company shall be entitled to recover all direct
expenses reasonably incurred by the Company in collecting
or attempting to collect amounts of the price outstanding.
(f) If the Purchaser fails to make any payment when
due in accordance with these General Conditions of Sale,
the Company reserves the right in its absolute discretion
and without prejudice to any of its other rights or remedies
to suspend all further deliveries until such payment has
been made in full together with any other amounts owing
to the Company whether the due date for payment has been
reached or not, if so requested by the Company or, at the
Company's option, to cancel the balance of the order. In
either case the Company shall hold the Purchaser liable
for costs incurred in respect of goods in course of manufacture
or ready for despatch.
(g) The Company shall be entitled to bring an action
for the price or part thereof whether or not the property
in the goods has passed.
5. PAYMENT DISPUTES AND DEBIT NOTES
The customer shall operate a debit note system and apply
this in accordance with the company's disputes procedure.
Debit notes shall include the company's relevant invoice
details and be notified to the company the day they are
raised and shall be considered as dated the day that they
are received by the company. Debit notes for disputes more
than 5 days older than the customers' payment terms will
not be accepted.
Debit notes shall only be raised for the value of goods
in dispute, not the whole invoice. Cash settlement will
not be paid on monies incorrectly withheld by debit notes
later rejected.
Debit notes may be raised for the following items:
Pricing
errors
Delivery shortages
Faulty goods
Damaged goods
Incorrect goods supplied (ie not as ordered)
All requests
to return goods must be agreed in writing with the company
prior to a debit note being raised. Debit notes can only be
raised in respect of cancelled goods providing written evidence
of the company's consent to the cancellation is attached to
the debit note.
The company reserves the right to replace products returned
as faulty, in place of issuing a credit. In circumstances
where items claimed faulty have not been opened, the goods
will be returned to the customer and no credit issued.
6. CREDIT
Any contract shall be subject to the Company being satisfied
as to the Purchaser's credit references, and without prejudice
to the generality of the foregoing, the Company may (in its
absolute discretion), having informed the Purchaser that the
goods are ready for despatch, refrain from delivering the
goods until such time as the Purchaser tenders the purchase
money to the Company together with any outstanding amounts
which may be due to the Company on any account whatsoever.
7. CARRIAGE
(a) Where the value of any order exceeds £[.......
] the cost of delivery of the goods to the Purchaser's premises
on the mainland of Great Britain shall be included in the
contract price.
(b) In all other cases the prices are exclusive of
carriage and insurance to the Purchaser's premises.
8. PACKING
Where it is necessary to despatch goods in crates, cases,
pallets, stillages or skids or other such packing, a charge
will be made for this. Unless otherwise specified this amount
will be credited in full on the return, within one month,
of such crates, skids, stillages and pallets etc. in good
condition carriage paid. No charge is made for any other form
of packaging and no credit will be allowed for its return.
9. LOSS OR DAMAGE IN TRANSIT
When the price quoted includes delivery, the Company shall
repair or replace free of charge goods damaged in transit
or not delivered in accordance with the Advice Note provided
that the Company is given written notification of such damage
or non-delivery within such time (being not more than 7 days)
as will enable the Company to comply with the carrier's conditions
of carriage as affecting loss or damage in transit, or, where
delivery is made by the Company's own transport, within 7
days after receipt of the Advice Note. Notwithstanding the
above undertaking, the Company will only consider claims for
alleged shortage if they are received within 7 working days
of the receipt of the goods by the Purchaser together with
sufficient information to enable the Company properly to identify
the shortage including the Advice Note number, case number
and condition of case. Where goods are collected by the Purchaser
or the Purchaser's staff or agent no claim for shortage or
damage will be considered.
10. SAMPLES
Samples will be charged for under the Company's normal
terms and credited in full when returned in good condition
provided prior written agreement is obtained from the company.
11. DELIVERY
(a) Unless accepted by the Company in writing all times
or dates for delivery of the goods are given in good faith
but are approximate only and shall not be of the essence of
the contract.
(b) All times or dates for delivery shall be calculated
from the date of acceptance by the Company of the order of
the Purchaser, or from the date of receipt by the Company
from the Purchaser of all information, instructions and drawings
as shall be necessary to enable the Company to carry out the
order, whichever shall be the later.
(c) Unless otherwise stated in writing the Company
shall be entitled to make partial deliveries of the goods.
12. VARIATIONS
(a) The Company shall be under no obligation to alter
or vary any part of the contract or any work connected therewith.
Any alteration to or addition to or amendment or other variation
of the specification, including any increase or decrease in
the quantity of the goods or any alteration to any drawings
or to the quality, performance, weight or measurements of
any goods or any alteration or variation of advised delivery
schedules, shall, if requested by the Purchaser, be subject
to the agreement of the Company, with such alteration or addition
to the price and to delivery dates or schedules as may be
required by the Company, and shall not be binding upon the
Company unless and until accepted by the Company in writing.
(b) In the event of any variation or suspension of
the work by the Purchaser's instructions or lack of instructions
the Company shall be entitled to adjust the contract price
to reflect any additional costs incurred, and to adjust delivery
dates or schedules.
13. STORAGE
If the Company does not receive forwarding instructions
sufficient to enable it to despatch the goods within 14 days
after notification that the goods are ready for delivery or
that they have been tested under Clause 14, the Purchaser
shall thereupon take delivery or arrange for storage. If the
Purchaser does not take delivery or arrange for storage as
aforesaid, the Company shall be entitled to invoice and be
paid for the goods as though the goods had been duly delivered
in accordance with these General Conditions of Sale and the
Company may arrange storage either at the Company's own works
or elsewhere on the Purchaser's behalf and all charges incurred
by the Company as a result of such delay including storage
and insurance shall be payable by the Purchaser.
14. PERFORMANCE
Any data, technical information or performance figures
provided by the Company are based on tests performed under
standard conditions at the Company's premises. They are believed
to be accurate but cannot be guaranteed under different conditions.
15. INSPECTION AND TESTS
The Company's products are carefully inspected, and, where
practicable, submitted to its standard tests at the Company's
works before despatch. If tests other than those specified
or tests in the presence of the Purchaser or its representatives
are required, these will be charged for. In the event of any
delay on the Purchaser's part in attending tests after the
Purchaser has received 7 days' notice that the Company is
ready to perform the tests, the tests will proceed in the
Purchaser's absence and the Purchaser accordingly hereby agrees
to accept and pay for such tests as if they had been performed
in the Purchaser's presence.
16. DESCRIPTIVE MATTER AND ILLUSTRATIONS
All descriptions and illustrations and particulars of
weights and dimensions issued by the Company in catalogues,
price lists, advertising matter and forwarding specifications
are by way of general descriptions and approximate only, and
shall not form part of any contract or give rise to any liability
on the part of the Company.
It is the policy of the Company to endeavour to develop and
improve its products, and accordingly the Company reserves
the right to change all specifications without prior notification
or public announcement pursuant to such policy. Provided that
nothing in this Clause shall oblige the Purchaser to accept
goods that do not reasonably comply with the contract.
17. WARRANTY
(a) Except in respect of death or personal injury caused
by the Company's negligence, the Company shall not be liable
whether in contract, tort or otherwise to the Purchaser by
reason of any representation (unless fraudulent) or any implied
warranty, condition or other term as to quality or fitness
for purpose, or any duty at Common Law or under the express
terms of the contract, and will bear no liability for any
defect save as stated in this clause 17. Nor shall the Company
bear any liability for any indirect, special, economic or
consequential loss or damage (whether for loss of profit,
loss of use, loss of production, loss of contract or otherwise)
costs, expenses or other claims for compensation whatsoever
(whether caused by the negligence of the Company, its employees
or agents or otherwise) which arise out of or in connection
with supply of the goods or their use or resale by the Purchaser.
Provided however that nothing in this Clause shall operate
to exclude any warranty or condition implied by law as to
the quality of the goods in the event that the goods when
sold by the Purchaser or when sold by any person or persons
to whom the Purchaser may sell the goods shall become the
subject of a consumer sale as defined in the Sale of Goods
Act 1979, or any statutory re-enactment or modification thereof
except to the extent that any claim under such warranty or
condition shall have arisen from any act or omission by the
Purchaser or by any other person or persons selling the goods
by way of a consumer sale
(b) The Warranty given in this Clause is subject to
the following provisos, namely:
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(i)
that the defects shall not have arisen through fair
wear and tear, wilful damage, negligence, abnormal working
conditions, misuse, alteration or repair of goods by
the Purchaser without the Company's approval;
(ii) that the Purchaser shall have followed all
instructions issued by the Company in relation to the
goods;
(iii) that in the case of defects which would
have been reasonably apparent to the Purchaser on reasonable
examination of the goods on delivery, the Purchaser
shall notify the Company of the defects in writing within
14 working days of delivery;
(iv) that in the case of any other defects, the
Purchaser shall notify the Company of the defects in
writing within 7 working days of the date when the defect
becomes apparent;
(v) that where in discharge of its obligations
under the Warranty given in this Clause the Company
agrees that the Purchaser may undertake any repair or
remedial work on its behalf, the cost of such work shall
be agreed in writing between the Purchaser and the Company
before the commencement of any such repair or remedial
work. |
18. REJECTION
Unless otherwise agreed in writing, and subject to Clause
16 hereof, goods rejected as not complying with the contract
must be rejected within 14 working days of delivery to the
Purchaser's premises or to such other place as the Purchaser
shall have specified.
19. CANCELLATIONS
Goods ordered on a firm order cannot be considered cancelled
until written consent has been obtained from the company.
Orders for which manufacturing or materials sourcing has already
irrevocably commenced will not be accepted for cancellation.
Should goods be refused at the customer premises claiming
that cancellation has been approved, written evidence must
be given of the company's consent, or the goods will still
be charged and no credit will be issued. Storage charges for
non-accepted goods will also be applied.
20. RETURN OF GOODS
In no circumstances may goods supplied against a firm
order be returned without the Purchaser having first applied
for and obtained the written consent of the Company. A handling
charge of at least 25%* to recover costs of re-stocking, transport
and administration, will be deducted from any credit allowed
by the Company where it is established that the reason for
the return of goods was not the subject of Clause 8 hereof
or due to any error on the part of the Company. Products that
are specialised or modified in any way from standard are not
eligible for return or credit.
* The minimum handling charge applicable is £100 even
where 25% of the returned goods value is less than this.
Debit notes for return of goods must not be raised or deducted
before written consent to return said goods has been obtained
from the company. If unauthorised debit notes are raised and
monies withheld from payment the company reserves the right
to withdraw supply of goods until the debit note is withdrawn
and the monies are paid in full.
The company will not collect goods from site. Goods returned
by the customer's transport or by third party carrier without
the prior written consent of the company will not be credited.
No credit will be due for goods lost or dispose of without
the company's written consent.
All goods returned must be in a re-saleable condition, with
undamaged cartons and must be in complete box quantities/minimum
sales quantities.
21. PATENTS
The Purchaser will indemnify the Company against all damages
penalties costs losses and expenses suffered by the Company
or for which it may become liable in respect of the infringement
of any intellectual property including (but without limitation)
any patent copyright registered design trade mark trade name
or know-how arising out of the Company's manufacture of goods
in accordance with any specification design drawings or other
data supplied by the Purchaser or its servants or agents.
22. COPYRIGHT
All drawings descriptions and other information submitted
by the Company, together with the copyright therein shall
remain the property of the Company.
23. FORCE MAJEURE AND OTHER CIRCUMSTANCES
The Company shall be entitled without liability on its
part and without prejudice to its other rights, to terminate
the contract or any unfulfilled part thereof, or at its option
to suspend or make partial deliveries or extend the time or
times for delivery, if the manufacture of the goods by the
Company or the Company's suppliers, or the delivery of the
goods or the performance by the Company of any of its obligations
under the contract is hindered or delayed whether directly
or indirectly by reason of the Purchaser failing to furnish
necessary instructions or information, or by war or other
hostilities, civil commotion, act of God, government action
or legislation, interruption of transport, strike, lock-out
or other form of industrial action (including, without limitation,
labour disputes with the Company's or any sub-contractor's
employees), accidents or stoppages to works, shortage of labour
materials equipment fuel or power, breakdown of machinery
or any other cause whatsoever beyond the reasonable control
of the Company or its sub-contractors, whether or not such
cause exists at the date of the order.
24. PASSING OF PROPERTY AND RISK
(a) Risk of damage to or loss of the goods shall pass
to the Purchaser in the case of goods to be delivered otherwise
than at the Company's premises, at the time of delivery, or,
if the Purchaser wrongfully fails to take delivery of the
goods, the time when the Company has tendered delivery of
the goods.
(b) Notwithstanding delivery and the passing of risk
in the goods, or any other provision of these Conditions the
property in the goods shall not pass to the Purchaser until
the Company has received in cash or cleared funds payment
in full of the price of the goods and all other goods agreed
to be sold by the Company to the Purchaser for which payment
is then due.
(c) Until such time as the property in the goods passes
to the Purchaser, the Purchaser shall hold the goods as the
Company's fiduciary agent and bailee, and shall keep the goods
separate from those of the Purchaser and third parties and
properly stored, protected and insured and identified as the
Company's property, but shall be entitled to resell or use
the goods in the ordinary course of its business.
(d) Until such time as the property in the goods passes
to the Purchaser (and provided the goods are still in existence
and have not been resold), the Company shall be entitled at
any time to require the Purchaser to deliver up the goods
to the Company and, if the Purchaser fails to do so forthwith,
to enter upon any premises of the Purchaser or any third party
where the goods are stored and repossess the goods.
(e) The Purchaser shall not be entitled to pledge or
in any way charge by way of security for any indebtedness
any of the goods which remain the property of the Company,
but if the Purchaser does so all moneys owing by the Purchaser
to the Company shall (without prejudice to any other right
or remedy of the Company) forthwith become due and payable.
25. INSOLVENCY OF PURCHASER
(a) This Clause applies if:-
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(i)
The Purchaser becomes insolvent or makes any voluntary
arrangement with its creditors or becomes subject to
an administration order or (being an individual or firm)
becomes bankrupt or (being a company) goes into liquidation
(otherwise than for the purposes of amalgamation or
reconstruction); or
(ii) An encumbrancer takes possession, or a receiver
or administrative receiver is appointed, of any of the
property or assets of the Purchaser; or
(iii) The Purchaser ceases, or threatens to cease,
to carry on business; or
(iv) The Company reasonably apprehends that any
of the events mentioned above is about to occur in relation
to the Purchaser and notifies the Purchaser accordingly. |
(b)
If this Clause applies then, without prejudice to any other
right or remedy available to the Company, the Company shall
be entitled to cancel the contract or suspend any further
deliveries under the contract without any liability to the
Purchaser, and if the goods have been delivered but not
paid for, the price shall become immediately due and payable
notwithstanding any previous agreement or arrangement to
the contrary.
(c) If this Clause applies then the Purchaser shall
have a duty to immediately bring to the notice of any receiver
administrator or any such person or persons appointed the
existence of and content of Clause 22 of these General Conditions
of Sale (Passing of Property and Risk) and the rights of
the Purchaser to use or trade on the Company's goods is
immediately terminated and any such receiver administrator
or other person or persons appointed will not be entitled
to use or to trade on the Company's goods unless so authorised
in writing by the Company.
26. ARBITRATION
If at any time any question, dispute or difference whatsoever
shall arise between the Purchaser and the Company upon or
in relation to or in connection with the contract, either
party may give the other notice in writing of the existence
of such question, dispute or difference, and the same shall
be referred to the arbitration of a person to be mutually
agreed upon, or failing agreement within 30 days of receipt
of such notice, of some person appointed by the President
for the time being of the Chartered Institute of Arbitrators.
A submission to arbitration under this Clause shall be deemed
to be a submission to a sole arbitrator pursuant to the
Arbitration Act 1996 or any statutory modification or re-enactment
thereof. Any such arbitration shall be held in London, England.
27. All contracts to which these General Conditions
of Sale apply shall be governed by and construed in accordance
with English Law.
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