General
1.1 In the case of Inconsistency between the seller's written confirmation and terms in any form of Contract sent by the Buyer to the Seller, the terms and conditions of Seller's written confirmation shall prevail.
1.2 This acknowledgement contains the entire bargain between the Buyer and Seller and the Buyer's conditions of purchase (if any) or any other terms and conditions shall not be recognised or deemed to form part of the Contract unless expressly accepted in writing signed by a Director of the Seller. No variation of the terms of these Conditions of Sale shall be binding upon the Seller unless made in writing by a duly authorised representative of the Seller.
Prices
2. In the event of orders not being accompanied by sufficient information to enable us to proceed with the execution thereof, forthwith we reserve the right to amend the tender prices to cover any increase in costs which have taken place after acceptance.
Delivery
3.1 The time given for despatch is to date from receipt by us of a written order to proceed and of all the necessary information and drawings to enable us to put the work in hand.
3.2 Unless otherwise specified in our tender, the price quoted includes delivery only by any method of transport at our option within the usual free delivery areas as if delivered by rail, subject to the Standard Terms and Conditions of Carriage of Merchandise as settled by the Railway Rates Tribunal (S R & O No. 1001)
3.3 The Seller will use reasonable endeavors to deliver on the date or dates specified but the time for delivery shall not unless expressly agreed be of the essence of the contract.
3.4 If the delivery date, terms of delivery, colour, design or any other particulars necessary for the making of the goods are not specified in the contract the Buyer shall give such particulars in reasonable time to allow the performance of the contract.
3.5 Where no specific delivery dates are stated in a contract, particulars must be furnished by the Buyer so as to enable the whole contract to be completed within three months from the date of contract. If the Buyer does not furnish the necessary particulars in accordance with this clause the Seller shall be entitled without notice to the Buyer to treat the contract as cancelled and claim damages from the Buyer.
3.6 Each delivery shall constitute a separate contract and the failure of any delivery shall not vitiate the contract as to other deliveries.
Force Majeure
4. Deliveries may be partially or totally suspended by the Seller during any period in which it may be prevented from manufacturing, supplying or delivering by normal route or means of delivery the goods covered by the contact through any circumstances falling within the ordinary meaning of force majeure including strikes, lock-outs, or differences with workmen, civil disturbances, war, Queen's Enemies, Act of God, storm, flood, tempest, seizure, arrest or requisition of the goods or of the raw materials form which they are ordinarily made, government requirements, quote or license restrictions, shortage or delay in obtaining fuel, power, materials or labour. If the total or partial suspension of the contract shall exceed six months the contract may be cancelled by either party or written notice. The Seller shall not be under any liability arising out of its failure to deliver which is directly or indirectly attributable to such event.
Payment
5.1 Payment is due on notification by the Seller that goods are ready for despatch. Where different terms apply these will be notified in writing.
5.2 If the Buyer does not pay on the day when payment is due the Seller shall be entitled to interest from the date due until payment is made at the rate of 8% above National Westminster Bank Ltd minimum lending rate.
5.3 In addition to the Seller's remedies under Clause 6.2 if any payments due to the Seller by the Buyer are not made on the due dates the Seller reserves the right to cancel or suspend the whole of this contract (or such goods not already delivered) and to cancel or suspend any other contract existing between the parties at the date of such default without being liable for consequential loss. The Seller shall also be entitled to require immediate payment for all goods delivered under any other contracts.
5.4 The Buyer shall not be entitled to withhold payment of any amount payable under this contract to the Seller because of a disputed claim of any nature nor shall the Buyer be entitled to set off against any amount payable under this contract to the Seller.
Property & Risk
6.1 Risk shall pass to the Buyer at the time of delivery in accordance with [delivery terms] of the Conditions and the Goods should be insured accordingly.
6.2 Property (both legal and beneficial) in the Goods shall remain in the Company until:
(i) all sums owing to the Company whether under the Contract or any other contract between the Company and the Buyer made prior to the date of the Contract ('the indebtedness') shall have been paid in full. Until such time the Buyer shall hold the Goods as bailee for the Company.
(ii) The Buyer until otherwise notified by the Company or on the happening of any of the events specified in (iv) ('The Events') may in the ordinary course of the business sell the Goods and pass property in them ('The resale') subject to the stipulations ('the Stipulations') imposed in (iii)
(iii) The Stipulations are that until the indebtedness has been fully discharged:
(A) The Goods shall not be converted into another product or admixed with other goods to make another product ('the New Product') nor will the Buyer sell the New Product and pass property in it ('The Sale') but if the Buyer in breach of the above provision does convert or admix the goods property in the New Product shall at the earliest moment that such vesting is possible, vest and remain in the Company whether or not property in the Goods is at that moment extinguished.
(B) the Resale shall be for the account of the Company and unless the Company by written notice requires the payment to it of the proceeds of the Resale ('the Proceeds') to the extent of the indebtedness, in which case the Buyer shall forthwith on receipt of such notice or soon thereafter as it shall receive the Proceeds make such payment, the Buyer shall retain the proceeds in a separate bank account to the Order of the Company and not mix them with any other monies;
(C) in the event of a breach by the buyer of its obligations under (A) the Company shall have the right to trace the Proceeds into any other monies with which they may have been mixed and the Buyer shall indemnify the Company on a full indemnity basis against loss, damage costs or expenses so arising including loss, damage, costs or expenses in respect of third party claims;
(E) the Goods and the New Product shall until their Resale or Sale be stored separately and shall be clearly marked as the property of the Company.
(iv) The Events are:-
(A) the giving of any notice to the Buyer that a receiver, manager, administrative receiver , supervisor, nominee, administrator or other similar person is to be or has been appointed over any of the property or assets of the Buyer or that a petition to wind up the Buyer is to be or has been presented or that an application for an administration order is to be or has been made or of any notice of a resolution to wind up the Buyer (save for the purposes of a bona fide reconstruction or amalgamation);
(B) a decision by the Buyer that the Buyer intends to make arrangement or composition with its creditors generally;
(C) where the Buyer pursuant to Section 123 or 268 of the Insolvency Act 1986 appears to be unable to pay a debt or appears to have no reasonable prospect of being able to pay a debt;
(D) any distress or execution is levied or threatened to be levied on any property or assets of the Buyer;
(E) the inability of the Buyer to pay its debts as they fall due;
(F) the Buyer (where the Buyer is a natural person becomes bankrupt or if while the Buyer is a patient within the meaning of the Mental Health Act 1983 an order shall be made in respect of his property under Section' 95 or 96 of that act or any statutory reenactment or modification thereof;
(v) On receipt of notification from the Company under (ii) or on the happening of any of the Events, the Power of the Buyer shall cease and the Buyer shall immediately deliver the Goods and the New Product in which is them reserved to or vested in the Company to such address as the Company shall specify in default of which, or in the alternative, the Company shall have the right to enter upon any premises or land in the ownership or possession of the Buyer and the Buyer shall indemnify the Company on a full indemnity basis against all loss, damage, costs or expenses in respect of third party claims.
Lien
7. Without prejudice to his rights under the Sale of Goods Act 1983 the Seller shall have a first and paramount lien on the goods sold for the purchase price and shall further have a first and paramount lien on the sold goods for any monies other that the purchase price which might be owing to it by the Buyer or his estate and the Seller shall be entitled in exercise of any of the said liens to re-sell goods if the Buyer makes default, without notification to the Buyer and upon such re-sale the Buyer shall continue to be liable to the Seller for all monies owed by him including costs, charges, and damages but less the proceeds received by the Seller on re-sale.
Warranties and Claims
8.1 Work is carried out to a reasonable workshop accuracy for the respective class of material. Where special dimension limits are required they should be clearly stated on the enquiry and/or the order.
8.2 Everything in our power is done to secure good materials and workmanship. In the event of any material or work being proved to our satisfaction to be faulty on delivery, we undertake, at our own expense, to repair or replace it as far as practicable, subject to the provisions of the following sub-clauses. This warranty is limited to repairing or replacing materials supplied by the Seller only.
8.3 All claims much be submitted in writing with full details and adequate samples
8.4 Claims for defects must be notified within ten days of receipt by the Buyer of the goods and will only be accepted by the Seller if the goods are in their original state and have not been modified.
8.5 The Seller's liability shall in no event exceed the Invoice value of the goods in respect of which damages are claimed.
8.6 The Seller shall have no liability where any incorrect or unsatisfactory goods are supplied owing to misleading or insufficient i nstructions having been given to the Seller relating to requirements or application.
8.7 All further claims for damages consequential or otherwise however arising are hereby expressly excluded.
Moulds and Tools
9. All moulds and tools whether charged for separately or included in the quoted price for insulation remain our property.
Proper Law
10. This contract and the constructed thereof is to be governed by English Law.
