Terms & Conditions
1. BASIS OF CONTRACT
1.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
1.2 The Customer is responsible for ensuring that the terms of the Order and any applicable specification (if submitted by the Customer) are complete and accurate.
2. GOODS
2.1 To the extent that the Goods are to be manufactured in accordance with an approved Specification supplied by the Customer, OR the Supplier, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual, or alleged infringement, of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of the Specification. This clause (2.1) shall survive termination of the Contract.
2.2 The Supplier reserves the right to amend the Specification of the Goods if required by any applicable statutory or regulatory requirements.
3. DELIVERY
3.1 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location OR on the completion of loading of the Goods at the Delivery Location (which includes Ex Works orders).
3.2 The Supplier shall not be liable for any delay in delivery of the Goods that is caused by 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.
3.3 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods.
3.4 If the Customer fails to take OR accept delivery of the Goods within three Business Days of the Supplier notifying the Customer that the Goods are ready (see 3.1) then, except where such failure or delay is caused by a Force Majeure Event or the Supplier’s failure to comply with its obligations under the Contract:
3.4.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the 3rd Business Day after the day on which the Supplier notified the Customer that the Goods were ready, and
3.4.2 the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance). (See also 6.5)
3.5 If 10 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken OR accepted delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods.
3.6 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4. QUALITY
4.1 The Supplier warrants that on delivery, and for a period determined by the shelf life given by the Supplier from the date of manufacture (warranty period), the Goods shall:
4.1.1 conform in all material respects with their Specification
4.1.2 be free from material defects in design, material and workmanship
4.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979)
4.1.4 be fit for any purpose held out by the Supplier
4.2 Subject to clause 4.3, if:
4.2.1 the Customer gives notice in writing to the Supplier during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 4.1;
4.2.2 the Supplier is given a reasonable opportunity of examining such Goods (in order to agree or otherwise); and
4.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost;
the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
4.3 The Supplier shall not be liable for Goods’ failure to comply with the warranty set out in clause 4.1 in any of the following events:
4.3.1 the Customer makes any further use of such Goods after giving notice in accordance with clause 4.2;
4.3.2 the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage or use of the Goods or (if there are none) good trade practice regarding the same;
4.3.3 the defect arises as a result of the Supplier following any drawing, design or Specification supplied by the Customer;
4.3.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
4.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
4.3.6 the Goods differ from their description OR the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
4.4 Except as provided in this clause 4, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 4.1.
4.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
4.6 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
5. TITLE AND RISK
5.1 Title to the Goods shall not pass to the Customer until the earlier of:
5.1.1 the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums
5.1.2 the Customer resells the Goods, in which case title to the Goods shall pass to the Customer at the time specified in clause 5.3
5.2 Until title to the Goods has passed to the Customer, the Customer shall:
5.2.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier’s property;
5.2.2 not remove, deface or obscure any identifying mark, or packaging, on or relating to the Goods;
5.2.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
5.2.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 7.2; and
5.2.5 give the Supplier such information relating to the Goods as the Supplier may require from time to time.
5.3 Subject to clause 5.4, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before the Supplier receives payment for the Goods. However, if the Customer resells the Goods before that time:
5.3.1 it does so as principal and not as the Supplier’s agent; and
5.3.2 title to the Goods shall pass from the Supplier to the Customer immediately before the time at which resale by the Customer occurs.
5.4 If before title to the Goods passes to the Customer, the Customer becomes subject to any of the events listed in clause 7.2, then, without limiting any other right or remedy, the Supplier may have:
5.4.1 the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
5.4.2 the Supplier may at any time:
5.4.2.1 require the Customer to deliver up all Goods in its possession which have not been resold, or irrevocably incorporated into another product; and
5.4.2.2 if the Customer fails to do so promptly, enter any premises of the Customer, or of any third party where the Goods are stored, in order to recover them.
6. PRICE, PAYMENT & CHARGES
6.1 The Supplier may, by giving notice to the Customer at any time, up to 20 Business Days before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
6.1.1 any factor beyond the Supplier’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
6.1.2 any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
6.1.3 any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
6.2 Unless otherwise agreed, the price of the Goods is exclusive of the costs and charges of packaging, insurance and transport of the Goods, which shall be invoiced to the Customer.
6.3 The price of the Goods is exclusive of amounts in respect of value added tax (VAT). The Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
6.4 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.
6.5 The price of the Goods is also exclusive of amounts that have become due from the Supplier storing either;
6.5.1 the Goods detailed on the order remaining undelivered or;
6.5.2 the Supplier storing the Customer’s own Free Issue materials. Charges will be by the pallet at normal commercial rates.
7. TERMINATION AND SUSPENSION
7.1 If the Customer becomes subject to any of the events listed in clause 7.2, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer.
7.2 For the purposes of clause 7.1, the relevant events are:
7.2.1 the Customer suspends, or threatens to suspend, payment of its debts, or is unable to pay its debts as they fall due or admits inability to pay its debts, or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply;
7.2.2 the Customer commences negotiations with all or any class of its creditors, with a view to rescheduling any of its debts, or makes a proposal for, or enters into, any compromise or arrangement with its creditors (other than, where the Customer is a company, where these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer);
7.2.3 (being a company) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer, other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer;
7.2.4 (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
7.2.5 (being a company) the holder of a qualifying floating charge over the Customer’s assets has become entitled to appoint or has appointed an administrative receiver;
7.2.6 a person becomes entitled to appoint a receiver over the Customer’s assets or a receiver is appointed over the Customer’s assets;
7.2.7 (being an individual) the Customer is the subject of a bankruptcy petition or order;
7.2.8 a creditor or encumbrancer of the Customer attaches, or takes possession of, or a distress, execution, sequestration or other such process is levied, or enforced on, or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
7.2.9 any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 7.2.1 to clause 7.2.6 (inclusive);
7.2.10 the Customer suspends, threatens to suspend, ceases, or threatens to cease to carry on all or a substantial part of its business;
7.2.11 the Customer’s financial position deteriorates to such an extent that in the Supplier’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; and
7.2.12 (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
7.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Goods under the Contract, or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in clause 7.2.1 to clause 7.2.12, or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
7.4 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest.
7.5 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
7.6 Clauses which expressly, or by implication, survive termination of the Contract shall continue in full force and effect.
8. LIMITATION OF LIABILITY
The Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods.
9. GENERAL
9.1 Waiver.
A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.