08 Oct TERMS AND CONDITIONS OF SALE
In these conditions ‘the Company’ shall mean Castings Services Limited, ‘the Goods’ shall mean the product supplied by the Company, and ‘the Customer’ shall mean the company, firm or person buying the goods from the Company.
- Application of conditions
All goods supplied by the Company are supplied on the following terms and conditions and no variation of those terms and conditions shall have effect unless expressly accepted by a Director of the Company in writing. The Company’s conditions exclude any other terms and conditions which the Customer may seek to impose whether or not the Customer’s conditions are contained in any offer, acceptance or counter offer made by the Customer. These conditions of sale supersede all prior representations, arrangements, understandings, agreements and conditions of sale between the Company and the customer, relating to the subject matter hereof and sets forth the entire complete and exclusive agreement and understanding between the parties hereto relating to the subject matter hereof. No party has relied on any representation, arrangement, understanding or agreement (whether written or oral) not expressly set out referred to in this agreement. Acceptance of the goods by the Customer or the signature of a representative of the Customer on any quotation, invoice or other document which expressly refers to these terms and conditions shall be conclusive evidence before any court or arbiter that these terms apply. Previous dealings between the Company and the Customer shall not vary or replace these terms or be deemed in any circumstance whatsoever so to do. Paragraphs and headings appearing in these conditions are for convenience only and not be construed as forming part of these conditions or taken into account in the interpretation thereof.
3.1 All quotations given by the Company are subject to written acceptance by the Company on receipt of the Customer’s order or (if sooner) the Company procures goods for the order. All such acceptances by the Company are subject to the availability of the necessary materials and to the Company being able to obtain any necessary authorisation and/or licences and to the same remaining valid. Whenever the company is requested by the customer to give a series of quotations within the same contract, each and every quotation is to be construed as the subject of a separate agreement and the provisions of this clause will apply to each quotation given by the company.
3.2 Delivery times are quoted in working days.
- Accuracy of Description of Goods
All descriptions, specifications, calculations, drawings, particulars of weights, and dimensions submitted by the Company or otherwise contained in the Company’s price list or other published matter are approximate only and none of these shall form part of any contract and are intended merely to present a general idea of the Goods as described therein.
5.1 All prices quoted are the Company’s current price at the time of quotation and are delivered prices unless otherwise stated. The price payable for the goods shall be the price ruling at the date of despatch and the Company shall be entitled to adjust the price of the goods at any time between the date of confirmation of order and the date of delivery of the goods to take account of any increase in costs incurred by the Company or changes to its price lists. VAT where applicable, which shall be added at the rate in force at the time the Goods are invoiced.
6.1 Delivery shall be deemed to have been effected when the goods leave the Company’s premises.
6.2 Time for delivery is not of the essence and the Company shall not be liable for any loss or damage caused by late delivery or by non-delivery.
6.3 The Company shall make delivery by instalments and invoice separately for each instalment. Where delivery is made by instalments each instalment shall be construed as the subject of a separate agreement to which all the provisions of these conditions shall (with the necessary alterations) apply.
6.4 Deviations in quantity of the Goods delivered from those stated in the contract shall not give the Customer the right to repudiate the Contract, to reject the Goods (save insofar as they materially exceed the amount ordered or to claim damages for breach of contract and the Customer shall be obliged to pay at the contract rate for the quantity delivered (except insofar as the Customer has the right to reject the Goods under this Condition).
- Haulage Charges
7.1 Small loads or express deliveries will be charged on an individual basis.
8.1 Where the Customer does not have a credit account with the Company, the full price of the Goods including VAT as invoiced is required before or upon delivery of the Goods referred to on the invoice.
8.2 Where the Customer has been offered credit terms by the Company, the full price of the Goods shall including VAT as invoiced be due and payable to the company without deduction by the last day of the month following the month of delivery.
8.3 Time for payment shall be of the essence and the Company shall be entitled to charge interest at 4% above the minimum lending rate of Midland Bank plc from the date when payment falls due until actual payment on all overdue accounts.
8.4 The Company reserves the right at any time to demand payment in advance before continuing with or delivering any order.
8.5 The Company shall not be bound to deliver Goods due to the Customer in respect of any contract until such time as all sums due by the Customer to the Company, including interest as aforesaid, have been paid in full.
8.6 A cheque given by the Customer shall not be treated as payment until it has been cleared.
8.7 The Company shall at any time be entitled to appropriate any payment made by the Customer in respect of any goods in settlement of such invoices as the Company may in its absolute discretion think fit notwithstanding any purported appropriation by the Customer.
9.1 The Company shall at its option, be entitled to terminate all or any of its contracts with the Customer forthwith and recover all expenses and losses resulting to the Company, including (but without limitation to) loss of profit or other consequential loss if:
(a) The Customer has a bankruptcy petition presented against him or a bankruptcy order is made;
(b) The Customer makes or seeks to make any composition or arrangement with his creditors:
(c) The Customer makes a proposal to his creditors for a voluntary arrangement or applies for any interim order (within the meaning of Section 268 Insolvency Act 1986);
(d) An encumbrance takes possession of any of the Customer’s assets or any of the Customer’s property is taken in execution or process of law;
(e) A petition is presented or an order is made or a resolution is passed for the winding-up of the Customer.
(f) A petition is presented or an order is made for an administration order to be made in relation to the Customer;
(g) The Customer’s directors make a proposal for a voluntary arrangement with the Customer’s creditors;
(h) The Customer is unable to pay its debts (within the meaning of Section 123 Insolvency Act 1986);
(i) A receiver or administrative receiver is appointed over any of the Customer’s assets, or;
9.1.2 The customer fails to make any payment owed to the Company on the due date.
9.1.3 The Customer fails to make payment in advance when requested in accordance with Condition 8 above, within 7 days of being requested to do so; or
9.1.4 The Customer fails to take delivery of or to collect the Goods within 14 days of being notified by the Company that they are to be delivered or are ready to be collected or;
9.1.5 The Customer is in breach of the terms and conditions of any contract with the Company (including breach of these conditions).
Risk in each consignment of the Goods, or in each consignment of the Goods where the Company has elected to make deliveries by instalment pursuant to Clause 6.3 shall pass to the Customer when the Goods are delivered or collected by the Customer or its agent.
Notwithstanding the passing of risk under clause10 above, unless and until payment shall have been made to the Company in respect of all the Goods delivered or to be delivered to the Customer and comprised in the contract and in respect of all and any Goods supplied or to be supplied by the Company under this contract or under any other contract between the customer and the Company in accordance with Clause 8, property in a title such as Goods shall remain with the Company and the following provisions of this Clause shall be applicable;
11.1 Until title to the goods passes to the Customer the Customer shall keep the goods in good and substantial repair and condition and the Goods shall be stored in such a way as to be clearly identifiable as belonging to the Company.
11.2 Insofar as consignments may be delivered to the Customer prior to the time when payment therefore is received by the company the customer shall hold the same in the capacity of a fiduciary for and on behalf of the Company until such a time when payment is received by the Company in accordance with Clause 8 hereof and in such capacity and until such time shall remain liable to account to the Company for the same or if the same shall be sold by the Customer, in accordance with the next paragraph of this clause for that part of the proceeds of sale thereof (the Company’s part of the proceeds) which is equivalent to the price at which the same were invoiced by the Company to the Customer.
11.3 The Customer shall not resell, exchange or barter the goods, in any way whatsoever, other than in the normal course of its business and providing that the Customer shall pay the Companies part of the proceeds of such a sale into a separate bank account clearly donated as an account containing monies deposited for the benefit of the Company by the Customer acting in a fiduciary capacity
11.4 Upon request the Customer shall assign forthwith to the Company the benefit of any agreement whether written or oral under which the goods have been sold to a third party notwithstanding and contrary to Clause 11.3 above, including but not limited to any claim for the sale price thereof of their recovery or value; thereafter, the Company shall be entitled to pursue any remedy open to the Customer and shall be entitled to retain any sum or property recovered as payment of a sum owing to the Company by the Customer.
11.4 The Company reserves the right to repossess any goods sold hereunder to the Customer in respect of which payment is overdue and thereafter to re-sell the same and for this purpose the Customer hereby grants an irrevocable right and license to the Company through its servants and agents to enter with or without vehicles upon all and any premises on which such goods may be situated to take possession of any such goods where appropriate detaching them from any new objects of which they have become part or with which they have been mixed without liability to the Customer for any consequential damage to the said objects. These rights shall continue to subsist notwithstanding the termination of this contract whether through the happening of any events specified in Clause 9 or otherwise and whether prejudice to any accrued right of the Company hereunder.
12.1 The Customer shall inspect the goods on delivery or on collection as the case may be.
12.2 In all cases where the Customer complains of defects or shortages, the Company shall without prejudice to the question of liability generally be under no liability in any event if it has not been given an opportunity to inspect the goods before they have been used by the Customer. I n respect of damage to all or part of the goods or loss of part of the goods comprised in the Contract notification must be made to the Company within 3 days of delivery of the Goods (which will normally be stated on the Carriers consignment note) and separately to the Carrier within the period stipulated by the Carrier’s items of carriage for claims against the Carrier.
13.1 The Company warrants that it has title to and the right to sell the goods.
13.2 No representation or warrant is given by the Company to the suitability or fitness of the Goods for any particular purpose and the Customer shall satisfy himself in this respect and shall be totally responsible therefore.
(a) Nothing in Clause l3 shall exclude or restrict the Company’s liability for death or personal injury caused by the negligence of the Company.
(b) Each of the sub-Clauses in Clause 13 is to be treated as separate and independent.
(a) The Company will either repair the goods at its own expense or, at its option, replace the Goods if any defects which the Company is reasonably satisfied are caused by faulty design, manufacture, materials or workmanship are discovered within three months from the date of despatch. The Company shall not be liable for defects caused by abnormal use, mis-use or defective or negligent fitting or affixing.
(b) The Customer may only claim the benefit of this clause if he informs the Company of the relevant defect in writing within seven days of discovering it and he returns the goods to the Company at his own expense.
14.3 Exclusion of Liability
In consideration of the Company’s obligations under Clause 12.2 the Customer agrees that apart from the terms set out herein no other terms, conditions or warranties or otherwise, express or implied, or otherwise shall form part of the contract.
14.4 Exclusion of Consequential Loss
(a) The Company shall not be liable for any consequential or indirect loss or damage suffered by the Customer howsoever arising whether or not caused by the Company’s negligence.
(b) Without prejudice to the generality of the foregoing, the Company shall not be liable for the loss of profits, loss of contracts, and damage to property of the Customer or anyone else whatsoever, howsoever arising and whether or not caused by the Company’s negligence.
Without prejudice to the remainder of Clause 12 of these conditions or to the Company’’ other rights hereunder, the Company’’ total liability for any one claim or for the total of all claims arising from any one act or default of the Company (whether arising from the Company’s negligence or otherwise) shall not in any event exceed the contract price for the Goods the subject of the claim
The Customer shall keep the Company indemnified against all costs, claims, demands, expenses and liabilities of whatsoever nature made by third parties caused in whole or in part or arising out of any act or omission of the connection with the use or storage or sale of the Goods.
- Design etc.
16.1 Where the Goods are made to a specification, instruction or design supplied on or on behalf of the Customer;
(a) The Customer is responsible for the suitability and accuracy of the specification, instruction, design or drawing (even where finally produced by the Company);
(b) The Customer shall indemnify the Company against infringement of any third party’s intellectual property rights in the specification, instruction, design or drawing.
16.2 Copyright, design right and any other intellectual property rights in the drawings designs and the like prepared by or for the company vests in the Company and the Customer undertakes not to copy any goods supplied by the Company.
The Customer shall not assign nor transfer nor purport to assign or transfer any contract to which these conditions apply or the benefit thereof to any other company or person whatsoever.
- Force Majeure
The Company shall not be liable for any failure to deliver the Goods arising from circumstances outside the Company’s control, including, for example acts of God, war, riot, strike, lock out, trade dispute or any other labour disturbance, fire, flood, difficulty in obtaining workmen, materials or transport or the consequences of hospitalisation or any Government interference or any other circumstances whatsoever outside the Company’s control. Furthermore the Company shall be entitled by written notice to determine or suspend the contract without incurring liability for any loss, expense or damage to the customer or any other party.
19.1 Cancellation will not be accepted where the goods have been made to the Customer’s special order.
19.2 In the event of cancellation the Customer will indemnify the Company fully against all expenses incurred by the Company together with liquidated damages of 20% of the contract price.
Goods returned to the Company will be accepted only at the Directors discretion. In the event of returns being accepted, a restocking charge of 30% will be applied.
- Time and Indulgence
The whole rights and remedies of the Company in terms of these conditions shall not be prejudiced or derogated from in any way by the failure of the Company whether on one or more occasion to exercise any of the said rights and remedies or by its agreement whether on one or more occasion not to exercise any of said rights and remedies.
In the event that any of these conditions shall be determined to be invalid, unlawful or unenforceable to any extent such condition or provision shall be severed from the remaining conditions which shall continue to be valid and enforceable to the fullest extent permitted by law.
Any notice, consent, notification, acknowledgement, authority or agreement required or referred in the contract shall be;
In writing and given to the party for whom it is intended at their registered or main office or last known address and; given by registered or recorded delivery post or telefax and shall be deemed to have been received 5 days after posting or 1 day after transmission as the case may be.
All contracts between the Company and the Customer shall be governed and be construed in accordance with
English Law and all disputes arising in relation to such contracts shall be submitted to the jurisdiction of the English courts.