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1. INTERPRETATION
1.1 In these Conditions:
“Bailment Liability Limit” means
£1,300 per tonne or such greater amount which comprises
the Seller’s insurance limit for bailed property;
“Buyer” means the person whose
order for the Goods and/or Services is accepted by the Seller;
“Buyer’s Materials” has
the meaning set out in condition 5.1;
“Charged Stock” means any Goods
which the Seller agrees to retain at its premises at the Buyer’s
request until the date of its release;
"Conditions" means the terms and
conditions of sale set out in this document and (unless the
context otherwise requires) any special terms and conditions
agreed in writing by the Seller;
“Confidential Information” means
any information of a secret or confidential nature including
(but not limited to) technical and non-technical information,
business and marketing plans and policies, client lists, terms
of contracts or agreements and other similar information relating
to the Seller and its suppliers or customers;
"Contract" means the relevant contract
between the Seller and the Buyer for the sale and purchase
of the Goods and/or the supply of the Services;
"Goods" means the goods (including
any instalment or parts of them, and any Charged Stock (unless
otherwise stated) but excluding any Buyer’s Materials)
which the Seller is to supply in accordance with these Conditions;
"Incoterms" means the international
rules for the interpretation of trade terms of the International
Chamber of Commerce as in force at the date when the Contract
is made;
“Intellectual Property Rights”
means all intellectual property rights (whether vested, contingent
or future) including patents, trade and service marks, trade
names, rights in designs, copyrights, typography rights, database
rights, trade secrets and know-how, in each case whether or
not registered and including registrations and applications
for registrations of any of the same and all rights and forms
of protection of a similar nature or having equivalent or
similar effect to any of the same anywhere in the world;
“Price” means the price of the
Goods and/or the Services;
“Product Liability Limit” means
£1 million or such greater amount which comprises the
Seller’s product liability insurance limit as set out
in the Schedule;
“Seller" means [ ] Limited (registered
number [ ]; and
“Services” means any design or
other services to be provided by the Seller pursuant to the
Contract whether in relation to the supply of Goods or otherwise.
1.2 In these Conditions, the masculine shall
include the feminine and the neuter, and the singular the
plural, and vice versa as the context shall admit or require.
1.3 The expression "person" shall
mean any person, body corporate, unincorporated association
and partnership.
1.4 The headings in these Conditions are for
ease of reference only and shall not affect their construction.
1.5 Any reference to a statutory provision
shall include that provision as from time to time modified
or re-enacted provided that in the case of modifications or
re-enactments made after the date of the Contract they shall
not have effected a substantive change to that provision.
1.6 Unless the context otherwise requires,
any term or expression which is defined in or given a particular
meaning by the provisions of the Incoterms shall have the
same meaning in these Conditions, but if there is any conflict
between the provisions of the Incoterms and these Conditions,
the latter shall prevail.
2. BASIS OF THE SALE
2.1 The Seller shall sell and the Buyer shall
purchase the Goods and/or the Services in accordance with
any written order of the Buyer which is accepted by the Seller,
subject to these Conditions. For the avoidance of doubt, the
Seller may refuse any order in its absolute discretion.
2.2 All other terms and conditions (except
those implied in favour of a seller which are not inconsistent
with these Conditions) whether or not the same are endorsed
upon, delivered with or referred to in any purchase order
or any other document delivered or sent by the Buyer to the
Seller are expressly excluded.
2.3 Receipt of the Goods by the Buyer or completion
of the Services by the Seller shall be deemed to be conclusive
proof that the Buyer has accepted these Conditions in the
absence of any express or other implied acceptance of these
Conditions by the Buyer.
2.4 No variation to these Conditions shall
be binding unless agreed in writing between the authorised
representatives of the Buyer and the Seller.
2.5 The Seller's employees or agents are not
authorised to make any representations concerning the Goods
or Services unless confirmed by the Seller in writing. In
entering into the Contract the Buyer acknowledges that it
does not rely on, and waives any claim for breach of, any
such representations which are not so confirmed.
2.6 Any advice or recommendation given by
the Seller or its employees or agents to the Buyer or its
employees or agents as to the Services or to the storage,
application or use of the Goods (whether in conjunction with
other materials or otherwise) which is not confirmed in writing
by the Seller is followed or acted upon entirely at the Buyer's
own risk, and accordingly the Seller shall not be liable for
any such advice or recommendation which is not so confirmed.
2.7 Any typographical, clerical or other error
or omission in any sales literature, quotation, price list,
acceptance of offer, invoice or other document or information
issued by the Seller shall be subject to correction without
any liability on the part of the Seller.
2.8 The Buyer shall provide to the Seller
all information necessary to enable it to perform the Contract.
If it does not do so, the Seller shall have such additional
time to perform the Contract as may be required by it.
3. QUOTATIONS AND ORDERS
3.1 Any quotation or estimate given by the
Seller is an invitation to the Buyer to make an offer only
and no order of the Buyer placed with the Seller in pursuance
of a quotation or estimate or otherwise shall be binding on
the Seller unless and until it is accepted by an authorised
representative of the Seller.
3.2 All quotes are valid for 30 days only
or until earlier acceptance by the Buyer, after which time
they may be altered by the Seller without giving notice to
the Buyer.
3.3 The quantity, quality and description
of and any specification for the Goods and/or the Services
shall be those set out in the Buyer's order (if accepted by
the Seller). The Buyer shall be responsible to the Seller
for ensuring the accuracy of the terms of any order (including
any applicable specification) submitted by the Buyer.
3.4 No order which has been accepted by the
Seller may be cancelled by the Buyer except with the agreement
in writing of the Seller and on terms that the Buyer shall
indemnify the Seller in full against all loss (including loss
of profit), costs (including the cost of all labour and materials
used), damages, charges and expenses incurred by the Seller
as a result of cancellation.
4. SPECIFICATIONS AND SAMPLES
4.1 If the Services are to be performed or
the Goods are to be manufactured or any process is to be applied
to the Goods by the Seller in accordance with a specification
submitted by the Buyer, the Buyer shall indemnify the Seller
against all loss, damages, costs and expenses awarded against
or incurred by the Seller in connection with or paid or agreed
to be paid by the Seller in settlement of any claim for infringement
of any Intellectual Property Right of any person which results
from the Seller's use of the Buyer's specification.
4.2 The Seller reserves the right to make
any changes in the specification of the Goods or Services
which are required to conform with any applicable safety or
other statutory requirements or, where the Goods or Services
are to be supplied to the Seller's specifications, which do
not materially affect their quality or performance.
4.3 All sketches, origination work, drawings,
artwork, specifications, mouldings, dies and other such items
prepared or provided by the Seller shall remain the property
of the Seller and shall be returned to the Seller on request.
The Seller may destroy or dispose of such items at its absolute
discretion and without liability to the Buyer.
4.4 The Seller may make an additional charge
for artwork, design and origination work including proofs,
samples and models and accepts no responsibility in respect
of any errors, omissions or defects in or arising from the
same if they have been approved by the Buyer.
4.5 Samples are used solely to enable the
Buyer to judge for itself the quality of the bulk and as a
mere indication of the type and quality of the Goods and not
so as to constitute a sale by sample. The Buyer shall take
the Goods at its own risk as to their corresponding with the
said sample.
5. BUYER’S MATERIALS
5.1 The Buyer is advised to retain duplicates
or copies of any master artwork, films, tapes, disks and other
materials provided by it to the Seller in connection with
the Contract (“Buyer’s Materials”).
5.2 The Seller’s liability for any loss
of or damage to any of the Buyer’s Materials or any
Charged Stock whilst in the possession or custody of the Seller
(whether such loss or damage is due directly to the negligence
of the Seller, its employees or agents, or otherwise) shall
not exceed the limits set out in condition 5.3 unless:-
5.2.1 at the time of ordering the Goods from
the Seller the Buyer shall declare in writing to the Seller
a special interest in the Buyer’s Materials and/or the
Charged Stock and agrees to pay a surcharge over the Price
calculated by reference to the extent of that interest; and
5.2.2 in respect of the Buyer’s Materials,
prior to the initial delivery of such materials to the Seller
the Seller provides the Buyer with a written acknowledgement
of such special interest setting out the extent to which the
Seller agrees to narrow the scope of its limitation of liability
in respect of such loss or damage to the Buyer’s Materials
as may occur in the future; or
5.2.3 in respect of the Charged Stock, prior
to the Seller notifying the Buyer that the Charged Stock is
available for delivery to the Buyer the Seller provides the
Buyer with a written acknowledgement of such special interest
setting out the extent to which the Seller agrees to narrow
the scope of its limitation of liability in respect of such
loss or damage to the Charged Stock as may occur in the future.
5.3 The limits referred to in condition 5.2
are:-
5.3.1 the Bailment Liability Limit in respect
of any claim for direct loss suffered by the Buyer as a result
of any loss of or damage to any of the Buyer’s Materials
or any of the Charged Stock; and
5.3.2 the Price of the Goods and/or Services
supplied pursuant to the Contract under which the liability
arises in respect of all other claims (including, without
limitation, any claims for consequential loss or damage).
5.4 The Buyer shall insure all Buyer's Materials
and Charged Stock whilst they are in the possession or custody
of the Seller for all risks (including loss of profit) in
full or for the excess over the Seller’s limit of responsibility
set out in condition 5.3.
5.5 The Buyer acknowledges and agrees that
the Seller will have no knowledge of the intrinsic value to
the Buyer of any of the Buyer's Materials or Charged Stock
nor of the consequential losses the Buyer may suffer as a
result of any loss of or damage to any of the Buyer's Materials
or Charged Stock whilst in the possession or custody of the
Seller nor does it have the ability to insure against any
such loss or damage unless it is notified of a special interest
pursuant to condition 5.2, and that therefore the limits on
the Seller’s liability set out in condition 5.3 are
reasonable in all the circumstances.
6. PRICE
6.1 The Price:-
6.1.1 shall be the Seller's quoted price or,
where no price has been quoted (or a quoted price is no longer
valid), the price listed in the Seller's published price list
current at the date of acceptance of the order. Where the
Goods are supplied for export from the United Kingdom, the
Seller's published export price list shall apply;
6.1.2 is exclusive of any applicable value
added tax, which the Buyer shall be additionally liable to
pay to the Seller, at the rate applicable at the appropriate
tax point;
6.1.3 is ex works unless otherwise stated,
and where the Seller agrees to deliver the Goods otherwise
than at the Seller's premises, the Buyer shall be liable to
pay the Seller's charges for transport, packaging and insurance;
and
6.1.4 does not include the cost of cases or
other packing materials which shall remain the property of
the Seller and will be returnable at the Buyer’s expense
at the request of the Seller. Any such cases or packing materials
not returned by the Buyer within 30 days of such request shall
be paid for by the Buyer at their then value.
6.2 The Seller reserves the right, by giving
notice to the Buyer at any time before delivery of the Goods
or performance of the Services, to increase the Price to reflect
any increase in the cost to the Seller which is due to any
factor beyond the control of the Seller (such as, without
limitation), any foreign exchange fluctuation, currency regulation,
alteration of duties, significant increase in the costs of
labour, materials or other costs of manufacture, any change
in delivery dates, production runs, quantities or specifications
for the Goods or the Services which is requested by the Buyer,
or any change in the limits on the Seller’s liability
under the Contract requested by the Buyer pursuant to either
of clauses 5.2.1 or 12.3.1 or any delay caused by any instructions
of the Buyer or failure of the Buyer to give the Seller adequate
information or instructions.
7. PAYMENT
7.1 The Seller shall be entitled to invoice
the Buyer for the Price on or at any time after delivery of
the Goods or performance of the Services, unless the Goods
are to be collected by the Buyer or the Buyer wrongfully fails
to take delivery of the Goods, in which event the Seller shall
be entitled to invoice the Buyer for the Price at any time
after the Seller has notified the Buyer that the Goods are
ready for collection or (as the case may be) the Seller has
tendered delivery of the Goods.
7.2 The Buyer shall pay the Price (in full,
in sterling and clear of any banking charges) within 30 days
of the date of the Seller's invoice, notwithstanding that
delivery of the Goods or performance of the Services may not
have taken place and that property in the Goods has not passed
to the Buyer.
7.3 The time of payment of the Price shall
be of the essence of the Contract. Receipts for payment will
be issued only upon request.
7.4 The Buyer shall not be entitled to set
off against any monies due to the Seller under the Contract
any amount claimed by or due to the Buyer from the Seller
whether pursuant to the Contract or on any other account whatsoever.
7.5 If the Buyer fails to make any payment
on the due date then, without prejudice to any other right
or remedy available to the Seller, the Seller shall be entitled
to:-
7.5.1 cancel the Contract or suspend any further
deliveries or supplies to the Buyer;
7.5.2 appropriate any payment made by the
Buyer to such of the Goods (or the goods supplied under any
other contract between the Buyer and the Seller) as the Seller
may think fit (notwithstanding any purported appropriation
by the Buyer);
7.5.3 charge the Buyer interest (both before
and after any judgment) on the amount unpaid, at the rate
of three per cent per annum above Lloyds TSB Bank base rate
from time to time, until payment in full is made (a part of
a month being treated as a full month for the purpose of calculating
interest); and
7.5.4 charge the Buyer for all expenses (including
legal fees) incurred by the Seller in collecting the amounts
due.
8. DELIVERY
8.1 Delivery of the Goods shall be made by
the Buyer collecting the Goods at the Seller's premises at
any time after the Seller has notified the Buyer that the
Goods are ready for collection or, if some other place for
delivery is agreed by the Seller, by the Seller delivering
the Goods to that place.
8.2 Any dates quoted for delivery of the Goods
or for the supply or completion of the Services (as the case
may be) are approximate only and the Seller shall not be liable
for any delay in delivery of the Goods or performance of the
Services howsoever caused. Time for delivery shall not be
of the essence. The Goods may be delivered by the Seller or
the Services supplied in advance of the quoted date upon giving
reasonable notice to the Buyer.
8.3 Where Goods or Services are to be supplied
or delivered by the Seller in accordance with periodic delivery
or performance schedules or similar notification of the delivery
or performance requirements of the Buyer, the Buyer shall
not be entitled to cancel or vary any such delivery or performance
schedules or requirements, which are expressed by the Buyer
to be firm requirements, without the prior written consent
of the Seller, and the Seller shall be entitled to reimbursement
of any additional costs and expenses incurred or suffered
as a result of such cancellation or variation.
8.4 When expedited delivery or completion
is agreed to by the Seller and necessitates overtime or other
additional costs the Buyer shall reimburse the Seller for
the amount of such overtime payment or other costs.
8.5 Where postponement of delivery of the
Goods or completion of the Services is agreed by the Seller
the Buyer shall, if required by the Seller, pay all costs
and expenses (including a reasonable charge for storage and
insurance of the Goods and interest on the Price) occasioned
thereby but any Goods shall be held at the Buyer’s risk
as from the time of postponement.
8.6 Where delivery of the Goods is to be made
by the Seller in bulk, the Seller reserves the right to deliver
up to 10% more or 10% less than the quantity ordered and the
Price shall be adjusted to reflect the quantity delivered
but based on the Contract rate.
8.7 The Seller shall be entitled to make delivery
of the Goods or perform the Services by instalments and to
invoice the Buyer for each instalment despatched or performed
. Each delivery or performance shall constitute a separate
contract and failure by the Seller to deliver or perform any
one or more of the instalments in accordance with these Conditions
or any claim by the Buyer in respect of any one or more instalments
shall not entitle the Buyer to treat the Contract as a whole
as repudiated.
8.8 If the Seller fails to deliver the Goods
or perform the Services for any reason other than any cause
beyond the Seller's reasonable control or the Buyer's fault,
and the Seller is accordingly liable to the Buyer, the Seller's
liability shall be limited to the excess (if any) of the cost
to the Buyer (in the cheapest available market) of similar
goods or services, to replace those not delivered or performed,
over the Price.
8.9 If the Buyer fails to take delivery of
the Goods or fails to give the Seller adequate delivery instructions
at the time stated for delivery (otherwise than by reason
of any cause beyond the Buyer's reasonable control or by reason
of the Seller's fault) then, without prejudice to any other
right or remedy available to the Seller, the Seller may:-
8.9.1 store the Goods until actual delivery
and charge the Buyer for the reasonable costs (including insurance)
of storage; or
8.9.2 sell the Goods at the best price readily
obtainable and (after deducting all reasonable storage and
selling expenses) account to the Buyer for the excess over
the Price or charge the Buyer for any shortfall below the
Price.
8.10 Where damage to or loss of the Goods
occurs before delivery to the Buyer, the Seller undertakes
(subject as provided in condition 8.11) to replace or (at
its discretion) to repair free of charge any Goods so damaged
or lost in which event the time for delivery of the damaged
or lost Goods shall be extended for such period as the Seller
shall reasonably require for such replacement or repair.
8.11 The undertaking in condition 8.10 is
conditional upon:-
8.11.1 the Buyer giving written notice of
such damage or loss with reasonable particulars thereof to
the Seller and to the carrier (if other than the Seller) within
7 days of the receipt of the Goods or in the case of total
loss within 5 days of receipt of the Seller’s or the
carrier’s (as the case may be) delivery advice or other
notification of despatch; and
8.11.2 the Buyer (if requested by the Seller
and at the Buyer’s cost) returning any damaged Goods
to the Seller’s works within 30 days of receipt thereof.
8.12 Save as expressly provided in this condition
8, the Seller shall not have any liability whatsoever for,
or in connection with, any damage to or loss of the Goods
in transit to the contracted place of delivery.
9. ACCEPTANCE
9.1 Without prejudice to the Buyer’s
rights under condition 8.10 and 11 the Buyer shall be deemed
to have accepted the Goods and/or the Services as being in
conformity with the Contract, and shall be bound to pay for
them, unless written notice of rejection thereof is received
by the Seller within 7 days of delivery.
9.2 Save in the circumstances referred to
in condition 11, Goods accepted by the Buyer cannot subsequently
be returned and any claim which the Buyer might otherwise
have shall be deemed to have been waived.
9.3 If after notice of rejection has been
given the Buyer deals with the Goods as owner thereof, or
if any conduct of the Buyer is inconsistent with such rejection
or with the ownership of the Goods by the Seller, the Buyer
shall be deemed to have accepted the Goods and be bound to
pay for them.
10. RISK AND PROPERTY
10.1 Risk of damage to or loss of the Goods
shall pass to the Buyer:-
10.1.1 in the case of Goods to be delivered
at the Seller's premises, at the time when the Seller notifies
the Buyer that the Goods are available for collection; or
10.1.2 in the case of Goods to be delivered
otherwise than at the Seller's premises, at the time of delivery
or, if the Buyer wrongfully fails to take delivery of the
Goods, the time when the Seller has tendered delivery of the
Goods.
10.2 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 Buyer until
the Seller has received in cleared funds payment in full of
the Price and all other goods agreed to be sold by the Seller
to the Buyer for which payment is then due.
10.3 Until such time as the property in the
Goods passes to the Buyer, the Buyer shall hold the Goods
as the Seller's fiduciary agent and bailee, and shall keep
the Goods separate from those of the Buyer and third parties
and properly stored, protected and insured and identified
as the Seller's property. Until that time the Buyer shall
be entitled to resell or use the Goods in the ordinary course
of its business, but shall account to the Seller for the proceeds
of sale or otherwise of the Goods, whether tangible or intangible,
including insurance proceeds, and shall keep all such proceeds
separate from any monies or property of the Buyer and third
parties and, in the case of tangible proceeds, properly stored,
protected and insured.
10.4 Until such time as the property in the
Goods passes to the Buyer (and provided the Goods are still
in existence and have not been resold) the Seller shall be
entitled at any time to require the Buyer to deliver up the
Goods to the Seller and, if the Buyer fails to do so forthwith,
to enter upon any premises of the Buyer or any third party
where the Goods are stored and repossess the Goods.
10.5 The Buyer 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 Seller,
but if the Buyer does so all monies owing by the Buyer to
the Seller shall (without prejudice to any other right or
remedy of the Seller) forthwith become due and payable.
11. WARRANTIES
11.1 Subject to the condition 11.2, the Seller
warrants that the Goods and Services will correspond with
their specification at the time of delivery or performance
(as the case may be) and will be free from defects in material
and workmanship at the time of their original delivery or
performance.
11.2 The warranty set out in condition 11.1
is given by the Seller subject to the following conditions:-
11.2.1 the Seller shall be under no liability
in respect of any defect in the Goods or Services arising
from any drawing, design or specification supplied by the
Buyer;
11.2.2 the Seller shall be under no liability
in respect of any defect arising from fair wear and tear,
wilful damage, negligence, abnormal working conditions, failure
to follow the Seller's instructions (whether oral or in writing),
misuse or alteration or repair of the Goods without the Seller's
approval;
11.2.3 the Seller shall be under no liability
under the above warranty (or any other warranty, condition
or guarantee) if the Price has not been paid by the due date
for payment; and
11.2.4 the above warranty does not extend
to parts, materials or equipment not manufactured by the Seller,
in respect of which the Buyer shall only be entitled to the
benefit of any such warranty or guarantee as is given by the
manufacturer to the Seller and of which the Seller is actually
aware.
11.3 Without prejudice to the provisions of
condition 8, where any valid claim in respect of any of the
Goods or Services which is based on any defect in the quality
or condition of the Goods or Services, or their failure to
meet specification, is notified to the Seller in accordance
with these Conditions, the Seller shall be entitled to replace
the Goods or supply further Services (or the part in question)
free of charge or, at the Seller's sole discretion, refund
or issue a credit note to the Buyer for the Price (or a proportionate
part of the Price) PROVIDED ALWAYS that:-
11.3.1 the Buyer has notified the Seller in
writing within 14 days of the time when it discovered, or
ought to have discovered, any such defect;
11.3.2 the Buyer has afforded the Seller a
reasonable opportunity to inspect the Goods and, if so requested
by the Seller, has returned (at the Buyer's risk) the allegedly
defective Goods to the Seller's main office (or such other
address as it may have specified) suitably packaged and carriage
pre-paid;
11.3.3 the Goods have been properly and correctly
stored and/or used by the Buyer;
11.3.4 the Buyer has made no further use of
the Goods that are alleged to be defective after the time
at which the Buyer discovered that they were defective; and
11.3.5 the liability of the Seller under this
condition 11.3 is accepted by the Buyer in substitution for
and to the exclusion of any other claims for direct loss which
the Buyer has or may have.
11.4 Subject as expressly provided in these
Conditions, and except where the Goods or Services are supplied
to a person dealing as a consumer (within the meaning of the
Unfair Contract Terms Act 1977), all warranties, conditions
or other terms implied by statute or common law are excluded
to the fullest extent permitted by law.
12. LIABILITY
12.1 Nothing in these Conditions shall limit
or restrict the Seller’s liability for death or personal
injury resulting from its negligence or for any injury or
damage caused by a defective product within the meaning of
the Consumer Protection Act 1987.
12.2 The Seller’s liability for any
claim relating to loss of or damage to any of the Buyer’s
Materials is as set out in condition 5.2.
12.3 The Seller’s aggregate liability
for any other claim or series of claims arising out of the
Contract or out of any act or series of acts or omissions
or any default or defaults of the Seller (whether arising
from the Seller’s negligence or otherwise) shall not
(subject to the provisions of condition 12.1) exceed the limits
set out in condition 12.4 unless:-
12.3.1 at the time of ordering the Goods or
the Services from the Seller the Buyer shall declare in writing
to the Seller a special interest in the supply of the Goods
or Services and agrees to pay a surcharge over the Price calculated
by reference to the extent of that interest; and
12.3.2 prior to the delivery of the Goods
or performance of the Services (as the case may be) the Seller
provides the Buyer with a written acknowledgement of such
special interest setting out the extent to which the Seller
agrees to narrow the scope of its limitation of liability
in respect of such loss as may occur in the future.
12.4 The limits referred to in condition 12.3
are:-
12.4.1 the Product Liability Limit in respect
of any claims for direct loss suffered as a result of loss
of or damage to physical property caused by the Goods sold
or Services supplied; and
12.4.2 the Price of the Goods and/or Services
supplied pursuant to the Contract under which the liability
arises in respect of all other claims (including, without
limitation, any claims for consequential loss or damage).
12.5 The Buyer acknowledges and agrees that
the Seller will have no knowledge of the intrinsic value to
the Buyer of any of the Goods and/or Services nor of the consequential
loss or damage the Buyer may suffer as a result of any failure
by the Seller to supply such Goods and/or Services in accordance
with the Contract nor does it have the ability to insure against
any such loss or damage unless it is notified of a special
interest pursuant to condition 12.3, and that therefore the
limits on the Seller’s liability set out in condition
12.4 are reasonable in all the circumstances.
12.6 The Buyer acknowledges that it has discussed
the limitations of the Seller’s liability set out in
conditions 5.3 and 12.4 with the Seller and that the Seller
has informed the Buyer that:-
12.6.1 the Seller’s insurers require
the Seller to incorporate into the Contract the limitations
of liability set out in conditions 5.3 and 12.4 as a condition
of the Seller’s insurance contract;
12.6.2 if the Buyer considered that the limitations
were insufficient in the context of the Buyer’s business,
it is possible for the Seller to negotiate increased insurance
cover with its insurers and in such circumstances a higher
maximum limitation could be negotiated other than that set
out in conditions 5.3 and 12.4 provided that the Price would
then be increased to reflect the increased insurance premium
payable by the Seller;
12.6.3 the Buyer acknowledges that it considers
the limitations set out in conditions 5.3 and 12.4 to be reasonable
in the context of its business, the Buyer’s Materials
being supplied to the Seller, and the Goods and Services being
supplied by the Seller and that it has not therefore requested
the Seller to make enquiries of its insurers on the basis
set out in condition 12.6.2.
12.7 The Seller shall not be liable to the
Buyer or be deemed to be in breach of the Contract by reason
of any delay in performing, or any failure to perform, any
of the Seller's obligations in relation to the Goods or Services,
if the delay or failure was due to any cause beyond the Seller's
reasonable control including, without prejudice to the generality
of the foregoing, act of God, explosion, flood, tempest, fire
or accident, acts, restrictions, regulations, bye-laws, prohibitions
or measures of any kind on the part of any governmental, parliamentary
or local authority, import or export regulations or embargoes,
strikes, lock-outs or other industrial actions or trade disputes
(whether involving employees of the Seller or of a third party),
difficulties in obtaining raw materials, labour, fuel, parts
or machinery, or power failure or breakdown in machinery.
12.8 Where the Goods or Services are sold
under a consumer transaction (as defined by the Consumer Transactions
(Restrictions on Statements) Order 1976 (as amended)) the
statutory rights of the Buyer are not affected by these Conditions.
13. INSOLVENCY AND BREACH
13.1 If any of the following events occur,
are threatened or in the opinion of the Seller are reasonably
likely to occur:-
13.1.1 the Buyer shall commit any breach of
the Contract and shall fail to remedy such breach (if capable
of remedy) within a period of 7 days from receipt of notice
in writing from the Seller requesting such breach to be remedied;
13.1.2 any distress or execution is levied
upon any of the goods or property of the Buyer;
13.1.3 the Buyer (or where the Buyer is a
partnership any partner thereof) offers to make any arrangements
with or for the benefit of its or his creditors or a petition
is presented or an order is made for the Buyer to become a
bankrupt; or
13.1.4 the Buyer (being a limited company)
has an administrative receiver or a receiver and manager appointed
of the whole or any part of its undertaking, property or assets
or a petition is presented or an order is made or a resolution
is passed or analogous proceedings are taken for the winding
up of the Buyer or for the appointment of an administrator
thereof
the Seller shall thereupon be entitled without
prejudice to its other rights hereunder forthwith to suspend
further performance of the Contract and of any other contract
between the Seller and the Buyer until the default has been
made good or to determine the Contract or any other contract
between the Seller and the Buyer or any unfulfilled part thereof
or at the Seller’s option to make partial supplies of
Goods and/or Services.
13.2 Notwithstanding any such termination
the Buyer shall immediately pay to the Seller at the Contract
rate for all work done, materials used and Goods and Services
delivered or performed (as the case may be) up to and including
the date of termination and shall in addition indemnify the
Seller against any resulting loss, damage or expense incurred
by the Seller in connection with the supply or non-performance
of the Contract including the cost of any material, plant
or tools used or intended to be used therefor and the cost
of labour and other overheads including a percentage in respect
of profit.
14. EXPORT TERMS
14.1 Where the Goods are supplied for export
from the United Kingdom, the provisions of this condition
14 shall (subject to any special terms agreed in writing between
the Buyer and the Seller) apply notwithstanding any other
provision of these Conditions.
14.2 The Buyer shall be responsible for complying
with any legislation or regulations governing the importation
of the Goods into the country of destination and for the payment
of any duties thereon.
14.3 Unless otherwise agreed in writing between
the Buyer and the Seller, the Goods shall be delivered FOB
the air or sea port of shipment and the Seller shall be under
no obligation to give notice under section 32(3) of the Sale
of Goods Act 1979 (as amended).
14.4 The Buyer shall be responsible for arranging
for testing and inspection of the Goods at the Seller's premises
before shipment. The Seller shall have no liability for any
claim in respect of any defect in the Goods which would be
apparent on inspection and which is made after shipment, or
in respect of any damage during transit.
14.5 Payment of all amounts due to the Seller
shall be made by irrevocable letter of credit opened by the
Buyer in favour of the Seller and confirmed by an independent
financial institution acceptable to the Seller.
15. PRODUCT LIABILITY AND REGULATORY COMPLIANCE
15.1 The Buyer shall ascertain and comply
with applicable laws relating to the Goods (including any
consumable items), their operation, use and disposal, including
compliance with customs declarations and formalities and shall
ensure that the Goods are used only for the purposes and in
the manner for which they were designed and supplied.
15.2 The Buyer shall procure that:-
15.2.1 the Goods are operated correctly, that
safe working practices are adopted and complied with and that
all persons likely to come into contact with the Goods receive
appropriate training and all applicable information in respect
thereof; and
15.2.2 all third parties who use or may be
affected by or rely upon the Goods receive all appropriate
warnings and that any warning notices displayed on the Goods
are not removed, defaced or otherwise obscured.
15.3 The Buyer shall pass on the obligation
set out in condition 15.2 to any third party recipient of
the Goods.
15.4 If the Seller makes any recommendation
to the Buyer in respect of the Goods concerning safety after
delivery the Buyer shall promptly comply with same and procure
compliance by any third party. Reasonable charges in respect
of the Seller being required to supply replacements for, or
additions to, the Goods in this respect shall be paid by the
Buyer.
15.5 The Buyer shall indemnify the Seller
in respect of any liability arising in relation to any breach
of the Buyer's obligations under this condition 15 whether
such liability arises as a result of a third party’s
use or operation of the Goods or otherwise.
16. GENERAL
16.1 The Seller may perform any of its obligations
or exercise any of its rights hereunder by itself or through
any other member of its group, provided that any act or omission
of any such other member shall be deemed to be the act or
omission of the Seller.
16.2 Any notice required or permitted to be
given by either party to the other under these Conditions
shall be in writing addressed to that other party at its registered
office or principal place of business or such other address
as may at the relevant time have been notified pursuant to
this provision to the party giving the notice.
16.3 No waiver by the Seller of any breach
of the Contract by the Buyer shall be considered as a waiver
of any subsequent breach of the same or any other provision.
16.4 If any provision of these Conditions
is held by any competent authority to be invalid or unenforceable
in whole or in part the validity of the other provisions of
these Conditions and the remainder of the provision in question
shall not be affected thereby.
16.5 Save as expressly stated in these Conditions,
a person who is not a party to the Contract has no right under
the Contracts (Rights of Third Parties) Act 1999 to enforce
any term of it but this does not affect any right or remedy
of a third party which exists or is available apart from that
Act.
16.6 The Buyer shall not at any time disclose
any Confidential Information relating to the Seller or use
such information in any manner which might be detrimental
to the Seller.
16.7 The Contract shall be governed by the
laws of England and the Buyer irrevocably submits to the jurisdiction
of the English courts.
RIGHT TO CANCEL THIS AGREEMENT
Our returns and refunds policy is in accordance
with the EU Distance Selling Directive which came into force
in October 2000 and is part of UK Iaw under the Consumer Protection
(Distance Selling) Regulations 2000.
This law applies to all transactions within
the UK where a consumer does not meet the vendor.
Contracts between businesses are not governed
by these regulations.
YOUR RIGHTS AS A CONSUMER
In accordance with the law you have a 7 day
'cooling off period' in which you have the right to cancel
your purchase and receive a full refund. This 'cooling of
period begins on the day after the day on which you receive
the Goods from us.
You do not need to give a reason for cancelling
your purchase. We are obliged to refund your payment in full
within 30 days of your cancellation.
Should you wish to cancel your purchase within
the 7 day 'cooling of period you must notify us of this fact
in writing and send your notification to us by e-mail or post
as follows:-
Please email us at accounts@welshboxes.co.uk
or please write to us at:-
Welsh Boxes & Engineering Company Limited
Bruce Road
Swansea Industrial Estate
Fforestfach
Swansea
SAS4HX
Tel: 01792 586527
Fax:01792585410
Please tell us your name and address. If your
order was made from this website please tell us the WorldPay
transaction ID. If your order was made by post please say
so.
On cancellation you must return the Goods
that we delivered to you. On our receipt of the returned Goods
we will exchange the Goods or we will refund to you the price
you paid for the Goods. You will be liable for the costs of
returning the Goods to us and we will not re-imburse you for
this.
REFUNDS DUE TO CANCELLATION
Should you cancel your purchase within this
7 day 'cooling off' period we will refund your payment in
full.
If you paid by credit or debit card from this
website your refund will be made directly to your credit or
debit card within 30 days of your cancellation.
If you paid by any other means your refund
will be made by cheque that will be posted to you within 30
days of your cancellation.
There will be no administrative charges for
cancellation within this 7 day 'cooling off' period. |
