TERMS AND CONDITIONS
1. CONDITIONS OF CONTRACT
In these Conditions of sale:
"the Contract" shall mean the contract for sale or supply of the Goods by the Seller to the Buyer.
"the Seller" shall mean THERMASET LIMITED or its successors, assignees, sub-contractors and/or agents;
"the Buyer" shall mean any person or persons firm or firms company or companies authority or authorities who shall order or buy the Goods and shall include his or their successors, executors and personal representatives;
"the Goods" shall mean any Goods forming the subject matter of this Contract including parts and components of or materials incorporated in them (including all replacements and renewals thereof and all accessories and additions thereto whether added or made before or after the date of the relative order);
"the Quotation" means any quotation or tender issued by the Seller;
2.1 The right is reserved to withdraw or cancel any quotation or tender without notice at any prior to acceptance and quotations and tenders shall be deemed to be withdrawn if not accepted by way of an order from the Buyer within 90 days from the date hereof and are subject to acknowledgement as stated below.
2.2 No quotation by the seller shall constitute an offer. No order placed with the Seller shall be binding on the Seller or deemed to be accepted by the Seller unless and until a written and unqualified acknowledgement of such Order is issued to the Buyer by the Seller. The Seller shall not be bound by any terms or conditions set out in the Buyer's order and these Conditions of Sale shall supersede and prevail over any other terms and conditions stipulated or referred to by the Buyer. No previous correspondence, writings, telexes, faxes, telegrams or verbal communication between the Buyer and the Seller regarding the Goods shall form any part of it or be incorporated into the Contract.
2.3 No variation hereto shall be of any effect unless expressly agreed to in writing by a Director of the Seller, and the amount to be paid for such variation shall be as stated by the Seller.
3.1 The prices set out in the specification issued by the Seller are based upon the prices and costs of raw materials, labour, overhead expenses etc., current at the date of quotation but may be varied by the Seller to take account of any increase in any of such prices or costs which may occur at any time before the Contract is completed. Any alteration by the Buyer in design, quantities, specification or other instructions and any suspension of work following on the Buyer's instructions or any failure by the Buyer to givetimeous instructions will give rise to adjustment of the price of the Seller's costs are thereby increased: in any such case the price(s) to be paid by the Buyer shall instead of the price(s) stated in the specification issued by the Seller be the price(s) ruling at the date of delivery of the Goods.
3.2 Quotations are based on the Buyer's specifications as given to the Seller and the Buyer shall be liable to pay for all the Goods manufactured by the Seller in accordance with such specifications notwithstanding that the Buyer has provided erroneous information within its specifications.
3.3 Quotations of price will normally be given by the Seller in pounds sterling, but in the event of a quotation being given in a currency other than sterling and the exchange rate on the date any payment falls due being different from that on (a) the date of the quotation or (b) the date of acceptance of the Buyer's order, whichever is the earlier the Seller shall have the right to make such adjustments as it may reasonably consider necessary to take account of such difference.
3.4 All prices are quoted net and are exclusive of Value Added Tax.
4.1 All items which the Seller is to deliver will be delivered to the address if known. In the absence of such address delivery is deemed to take place at the Seller's premises.
4.2 Date of delivery
4.2.1 Where the Goods leave the premises of the Seller, Delivery is on that date.
4.2.2 Where the Goods are delivered to the Buyer direct from the Seller's supplier, delivery is on the date that Goods leavethe Seller's premises; or, as an alternative, delivery is deemed to take place on the handing over of a delivery order by the Seller to the Buyer which authorises the Buyer to remove the Goods from any address that the Seller may notify the Buyer of.
4.3 Delivery dates mentioned in any quotation order or other document are approximate only and not of any contractual effect.
4.4 Late performance does not entitle the Buyer to do any of the following: Reject the Goods - terminate the Contract - withhold payment of any part of the Contract price.
4.5 The Seller reserves the right to make delivery by instalments and to tender a separate invoice in respect of each instalment.
4.6 Inspection by the Buyer.
4.6.1 The Buyer is under a duty to inspect the Goods on delivery (or on collection by the Buyer if appropriate) wherever it is possible to do so;
4.6.2 if inspection is impossible, the Buyer must write on the delivery (or collection) note "Goods not examined"
4.7.1 delivery is-
126.96.36.199 refused by the Buyer; or
188.8.131.52 at the request of the Buyer, - suspended - delayed or made by instalments, and the Seller gives notification of readiness to deliver; or,
4.7.2 the Seller due to circumstance beyond its control is unable to delivery the Goods: the Seller may treat the Contract as fulfilled by notifying the Buyer accordingly. Where the Seller treats the Contract as fulfilled under clause
4.7.3 if the Goods are in the Seller's possession he shall pay for the Goods into store;
4.7.4 from the date of sending the notification to the Buyer:
184.108.40.206 the risk of accidental loss or damage to the goods is on the Buyer and
220.127.116.11 the duty to pay the price arises. Where the Seller places the Goods into store under clause 4.7.3 above:
(a) if by request, the seller shall, and
(b) in any event, the seller may arrange insurance covering the major perils endorsing the Seller's own interest. The Buyer shall pay for the cost of storage and insurance.
4.8 Carriage of Goods.
4.8.1 where Goods are carried and delivered by the seller and any other carrier, the care carriage and unloading thereof whether by the Sellers employees or otherwise shall in all respects be at the Buyer's cost and risk until special arrangements have been made to the contrary in writing and no compensation or damages will be paid by the Seller for loss, damage, delay, detention or misdelivery whether caused by the act or default of the seller or its employees or by accident or otherwise.
4.8.2 The Buyer must notify the carrier and the Seller in writing within 3 days of any damage to Goods caused in transit or any irregularity (including quantity) in the carriage or delivery of the Goods and time is of the essence for the purpose of this sub-clause.
4.9 The Buyer will be responsible for providing labour free of charge for the off loading and stacking of materials on site during the course of the contract.
5.1 Payment without any discount or deferment on account of disputes or costs claimed is due within 30 days of the end of the month in which the invoice for payment is rendered.
5.2 In the event of the Customer failing to make payment to the Seller pursuant to paragraph 5.1above interest shall accrue and be paid by the Customer on all such unpaid sums at the rate of 4% above the Lloyds Bank PLC base rate for the time being in force on all outstanding sums, interest to run from day to day and to accrue after as well as before Judgement.
5.3 If the Buyer fails to pay any instalment on the date it becomes payable the whole of the balance of the price then outstanding shall become payable at one.
5.4 The Seller reserves the right to demand security for payment at any time before continuing with or delivering any order.
5.5 The seller is to be entitled to a lien (right to retain) on any Goods or chattels which the Seller has belonging to the Buyer until the Buyer discharges all its liability to the Seller.
5.6 The Seller is to be entitled to charge storage on any goods or chattels which the Seller has belonging to the Buyer and also reserved the right to dispose of any such Goods or chattels following 30 days notice to the Buyer.
If the Buyer-
6.1 being a Company:
6.1.1 has a petition for its winding-up, or
6.1.2 passes a resolution for voluntary winding-up (other than for the purpose of a bona fide amalgamation or reconstruction); or
6.1.3 compounds with its creditors; or
6.1.4 has a receiver or Administrator appointed over all or any of its assets; or
6.2 being an individual
6.2.1 becomes bankrupt or insolvent; or
6.2.2 enters into any arrangement with his/her creditors; or
6.2.3 commits a serious breach of this agreement (and in the case of such a breach being remediable, fails to remedy it within 7 days after receiving notice to do so), the price of all Goods invoiced and delivered shall immediately become due and payable to me Seller and in addition the Seller shall have the right in its absolute discretion to cancel or suspend forthwith any Contract subsisting with the Buyer without prejudice to the
Seller's rights to recover any loss or damage sustained.
7. PASSING OF OWNERSHIP AND RISK
7.1 Risk in the Goods shall pass to the Buyer when the Goods are delivered to, or collected by, the Buyer or its agent.
7.2 Notwithstanding risk in the Goods passing in accordance with clause 7.1 hereof title in the Goods shall not pass to the Buyer until whichever shall be the first to occur of the
7.2.1 payment being received by the Seller for the Goods and no other amounts then being outstanding from the Buyer to the Seller in respect of other Goods supplied by the Seller;
7.2.2 the Buyer selling the Goods in accordance with the provisions of these terms and conditions in which case title to the Goods shall be deemed to have passed to the Buyer immediately prior to delivery of the Goods to the Buyer's customer; and
7.2.3 the Seller by a Director of the Seller expressly agreeing in writing to waive its rights under clause 7.2 in respect of specified Goods shall forthwith vest in the Buyer.
7.3 Before title is passed to the Buyer under clause 7.2 and without prejudice to any of its other rights, the Seller shall have the right to recover or resell the Goods or any of them and may enter upon the Buyer's premises by servants or agents for that purpose at any time without notice in which the Goods or any part thereof are installed, stored or kept or is reasonably believed so to be.
7.4 Until payment due under all contracts between the Buyer and the Seller has been made in full:
7.4.1 the Buyer shall hold upon trust for the Seller the Goods and altered Goods and shall insofar as may be possible store them in such a way that they may be identifiable as the property of the Seller and separate from all other goods in the Buyer's possession;
7.4.2 in the event of the sale or hire of the Goods or altered Goods by the Buyer he shall hold the proceeds of such sale for hire on trust for the Seller in a separate bank account opened by the Buyer for this purpose.
7.4.3 the seller shall be entitled to trace all such proceeds of sale or hire charges received by the Buyer through any bank or other account maintained by the Buyer and the Buyer will provide every assistance free of charge to the Seller for same.
7.4.4 in the event of sale or hire of the Goods or altered Goods by the Buyer in the ordinary course of its business the Buyer shall assign its right to recover the selling price or hire charges from the third parties concerned to the Seller if required to do so in writing by the Seller.
7.5 As the insurable risk shall pass to the Buyer as soon as the goods are delivered to it, or to its order, and pending disposal, the Buyer shall keep the Goods insured in the amount of the price at which the Goods are sold to the Buyer against all insurable risks.
7.6 If Goods are destroyed by an insured risk prior to the same being paid for by the Buyer, the Buyer shall receive the proceeds of any such insurance as trustee for the Seller.
8.1 The Buyer is not permitted to cancel this Contract except with the written consent of a Director of the Seller.
8.2 Where there is an agreed cancellation as permitted by paragraph 8.1 above, the Buyer shall pay to the Seller a sum to be determined, representing liquidated damages to compensate the Seller against all losses incurred as a result of this cancellation.
9. CONSEQUENTIAL LOSS
The Seller shall not be liable for any consequential or indirect loss suffered by the Buyer whether this loss arises from breach of a duty, Contract or tort, or in any other way (including loss arising from the Seller's negligence). Non-exhaustive illustrations of consequential or indirect loss would be:
(a) loss of profit;
(b) loss of contracts;
(c) damage to property of the Buyer or anyone else.
10. TECHNICAL DATA
All information, details, measurements, descriptions and illustrations contained in the Seller's catalogues and sales manual, and all drawings, descriptive statements, weights, dimensions, power consumptions, price lists, advertisements and any other information and/or literature whether written or provided orally are intended to be and may be construed only as of a generally informative nature and the same shall not form any part of or be incorporated in any way into the contract.
11. INDUSTRIAL PROPERTY RIGHTS
11.1 The Buyer shall give the Seller the earliest possible written, faxed or telexed notice of any claim being made or action pending, threatened or brought against it in relation to alleged infringement of any industrial property rights.
11.2 Any design, specification or instruction furnished or given to the Seller by or on behalf of the Buyer shall not be such as may cause the Seller to infringe any industrial property rights vested in any thirdparty.
11.3 For the purposes of this clause "industrial property rights" shall mean patents, registered designs, registered trademarks and copyright.
12. EXCLUSION AND LIABILITY
12.1 Save insofar as the Seller has expressly undertaken liability in writing by a Director of the Seller under the conditions contained herein.
12.1.1 all express and implied warranties or conditions statutory or otherwise as to the quality or fitness of materials used, Goods supplied, work or design done, or any other matters are expressly excluded.
12.1.2 the Seller shall be under no liability of whatsoever nature for any loss or damage whether direct or indirect consequential or otherwise howsoever arising and whether caused by the Seller by reason of any breach of contract negligence or otherwise howsoever arising and whether caused by the Seller its servants or agents in an other way whatsoever.
12.2 It is expressly agreed that the Seller shall be under no liability whatsoever to indemnify the Buyer against:
12.2.1 loss damage or injury consequential or otherwise of whatsoever nature and whensoever and howsoever arising for which the buyer may be liable to third parties as a direct or indirect result of any act or omission by the Seller its servants or agents.
12.2.2 claims in respect of death or injury howsoever caused to any of the Buyer its servants or agents or employees or to any servant agent or employee of any other Sellers, sub-purchaser or other persons to whom the Buyer may be liable in damages as a direct or indirect result of any act or omission by the Seller its servants or agents.
13. ACCESS TO SITE
13.1 The Buyer will ensure that at all times the Seller has free access to the Site where the Goods are to be delivered.
13.2 In the event of the Seller being unable to obtain access to the Site, or the Site not being in a condition in which the Seller can deliver the Goods, then the Buyer shall be liable for all of the costs of the Seller incurred in any abortive visits to the Site in addition to any extra visits to the Site required to deliver the Goods.
Each of the subclauses in this contract are to be treated as separate and independent.
15. FORCE MAJEURE
15.1 The Seller accepts no liability for any failure to deliver the Goods arising from circumstances outside the Seller's control.
15.2 Non-exhaustive illustrations of circumstances referred to 15.1above are Act of God, war, riot, explosion, abnormal weather conditions, fire, flood, strike, lock-outs, Government action or regulations (U.K. or otherwise) delay by accidents suppliers and shortage of materials labour or manufacturing facilities.
15.3 If the Seller is prevented from delivering in the above circumstances it shall notify the Buyer of the fact in writing within 10 days commencing with contractual delivery dates;
15.4 If the circumstances preventing delivery are still continuing 3 months from and including the date of delivery, and the Seller sends such notice then either party may give written notice to the other cancelling the Contract.
15.5 If the Contract is cancelled in this way the Seller shall refund any payment which the Buyer has already made on account of the price (subject to deduction of any amount which the Seller is then entitled to claim from the Buyer) but the Seller accepts no liability to compensate the Buyer for any further loss or damage caused by failure to deliver the Goods.
16. FURTHER ASSURANCE
The Buyer shall from time to time upon the request of the Seller execute any additional documents and do any other acts or things which may reasonably be required to effectuate the purposes of this Contract.
The waiver or forbearance or failure of the Seller in insisting in any one or more instances upon the performance of any provisions of this agreement shall not be construed as a waiver or relinquishment of the Company's rights to future performance of such provision and the purchaser's obligation in respect of such future performance shall continue in full force and effect.
Any notice to be given under the contract shall be in writing and telexed sent by facsimile transmission or by first class prepaid letter post to the receiving party at its business address as last notified in writing to the other party and shall be deemed to have been given on the date of the date of telex or facsimile transmission or on the day following that on which the notice was posted.
19. LEGAL CONSTRUCTION
The construction and operation of this contract and of any Contract between the Seller and the Buyer is to be construed and governed in all respects and in accordance with English law, and the parties hereto agree to submit to the exclusive jurisdiction of the English Courts as regards any claim or matter arising under this Contract.
20. COUNTY COURT JURISDICTION
The Tamworth County Court shall have jurisdiction for all County Court matters arising out of the Goods under this Contract.