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1.
Definitions
1.1
“The Company” means Denholm Rees & O’Donnell Ltd
1.2
“The customer” means the person, firm or company that
contracts with the Company for the purchase of goods or
services.
1.3
“The goods” means the products of any kind manufactured
or sold by the Company.
1.4
“The services” means work of any kind carried out by the
Company.
2.
Conditions
applicable
2.1
These conditions shall apply to all contracts for the
sale of goods or services by the Company to the customer to the
exclusion of all other terms and conditions including any terms
or conditions that the customer may purport to apply under any
purchase order, confirmation of order or similar document.
2.2
All orders for goods or services shall be deemed to be an
offer by the customer to purchase goods or services pursuant to
these conditions.
2.3
Acceptance of delivery of the goods or service shall be
deemed conclusive evidence of the customer’s acceptance of these
conditions.
2.4
Any variation to these conditions (including any special
terms or conditions agreed between the parties) shall be
inapplicable unless agreed in writing by a director of the
Company.
2.5
In the event that information given by the customer to
the Company differs from that on which the quotation was based
and involves the alteration of the quotation, the Company may
increase the price quoted therein to cover any increase in cost
that the alteration may incur and amend the delivery date.
The price and
payment
2.6
The price of the goods or service shall be the Company’s
quoted price which will be binding upon the Company provided
that the customer shall accept the Company’s quotation within 30
days.
2.7
The price is exclusive of VAT which shall be due at the
rate ruling on the date of the Company’s invoice.
2.8
Where the Company has approved the customer’s credit
facilities the customer shall pay within 30 days of the
Company’s invoice. Time for payment shall be of the essence of
the contract. If the customer does not pay the whole of the
price within 30 days of the relevant date interest shall be
payable on the amount outstanding for the period beginning with
the expiry of the 30 days and ending with the date of payment at
the rate of 4% over the HSBC plc minimum lending rate for the
time being.
Warranties and
liability
2.9
All other terms conditions and warranties relating to
fitness for purpose, merchantability or condition of the goods
or service whether made expressly by the Company or its servants
or agents or implied by statute at common law or otherwise are
excluded.
3.
Delivery of the goods
3.1
The Company will make every endeavour to meet the
delivery times for the provision of the goods or services that
are specified in the quotation but no guarantee is given as to
delivery times which are forecasts only. Time shall not be of
the essence of the contract save in the case of payment due to
the Company.
3.2
Delivery times shall run from the date of receipt by the
Company of the customer’s order in writing or facsimile.
3.3
Delay in delivery shall not give the customer the right
to cancel the order.
3.4
The Company may deliver the goods or service by separate
instalments in accordance with an agreed schedule. Each separate
instalment shall be invoiced and paid in accordance with these
terms and conditions.
3.5
The failure of the customer to pay for any one or more of
the said instalments on the due dates shall entitle the Company
(at its sole option)
3.5.1
Without further notice to suspend further deliveries of
the goods or service pending payment by the customer and/or
3.5.2
To treat the contract as repudiated by the customer
3.6
The customer shall promptly obtain all necessary import
licenses, clearances, and other consents necessary for the
purchase of goods.
The
Company shall promptly upon request supply all documents
reasonably required by the customer for this purpose.
3.7
The Company shall not be liable for any loss or damage
whatever due to failure by the Company to deliver the goods or
service (or any of them or it) promptly or at all.
3.8
The goods or service may be delivered to the customer at
the Company’s address. The risk in the goods shall pass to the
customer upon such delivery taking place
3.9
The Company may arrange for carriage of the goods to the
customer’s address. The costs of carriage and any insurance
that the customer reasonably directs the Company to incur shall
be reimbursed by the customer without any set off or other
withholding whatsoever and shall be due on the date of payment
of the price. The carrier shall be deemed to be the customer’s
agent.
4.
Damage, shortage, and loss
4.1
In the event that the Company delivers the goods to the
customer, or uses a carrier to do so, the customer must notify
the Company within three days of delivery of any damage,
shortage or loss.
4.2
The Company shall not be liable for any loss or
consequential loss arising from such damage or shortage.
5.
Defects
5.1
The customer must notify the Company within 14 days of
receipt of the goods or service of any defects in them. The
customer shall return the goods to the Company carriage paid.
5.2
If the Company accepts the customer’s claim, the Company
shall have the choice of rectifying the defect or crediting the
customer with the amount given on the quotation.
5.3
The customer may not charge the Company for any work the
customer carries out to rectify a defect without written
agreement from the Company.
5.4
The Company shall despatch any rectified goods to the
customer carriage paid.
6. Acceptance of the goods or service
6.1
The customer shall be deemed to have accepted the goods
or service 30 days after delivery to the customer.
6.2
After acceptance the customer shall not be entitled to
reject the goods or services that are not in accordance with the
contract.
7.
Title and risk
7.1
Title and risk shall pass as hereinafter provided.
7.2
The goods shall be at the customers risk from delivery or
collection as the case may be.
7.3
In spite of delivery being made properly in the goods
shall not pass from the Company until
7.3.1
The customer shall have paid the price plus VAT in full
and
7.3.2
No other sums whatever shall be due from the customer to
the Company.
7.4
Until property in the goods passes to the customer in
accordance with clause 9.3 the customer shall hold the goods and
each of them on a fiduciary basis as Baillie for the Company.
The customer shall store the goods (at no cost to the Company)
separately from all other goods in its possession and marked in
such a way that they are clearly identified as the Company’s
property.
7.5
Notwithstanding that the goods (or any of them) remain
the property of the Company the customer may sell or use the
goods in the ordinary course of the customer’s business at full
market value for the account of the Company.
Any
such sale or dealing shall be a sale or use of the Company’s
property by the customer on the customer’s own behalf and the
customer shall deal as principal when making such sales or
dealings. Until property in the goods passes from the Company,
the entire proceeds of sale or otherwise of the goods shall be
held in trust for the Company and shall not be mixed with any
other money or paid into any overdrawn bank account and shall be
identified at all times as the Company’s money.
7.6
The Company shall be entitled to recover the price (plus
VAT) notwithstanding that property in any of the goods has not
passed from the Company.
7.7
Until such time as property in the goods passes from the
Company, the customer shall upon request deliver up such of the
goods as have not ceased to be in existence or resold to the
Company. If the customer fails to do so, the Company may enter
upon any premises owned, occupied or controlled by the customer
where the goods are situated and repossess the goods. On the
making of such request the rights of the customer under clause
9.5 shall cease.
7.8
The customer shall not pledge or in any way charge by way
of security for any indebtedness any of the goods that are the
property of the Company. Without prejudice to the other rights
of the Company. If the customer does so, all sums whatsoever
owing to the Company shall forthwith become due and payable.
7.9
The customer shall insure and keep insured the goods to
the full price against all risks to the reasonable satisfaction
of the Company until the date that property in the goods passes
from the Company, and shall whenever requested by the Company
produce a copy of the policy of insurance. Without prejudice to
the other rights of the Company, if the customer fails to do so,
all sums whatsoever owing by the customer to the Company shall
forthwith become due and payable.
7.10
The customer shall promptly deliver the prescribed
particulars of this contract to the Registrar in accordance with
the Companies Act 1985 Part XII as amended. Without prejudice
to the other rights of the Company. If the customer fails to do
so all sums whatsoever owing by the customer to the Company
shall forthwith become due and payable.
8.
Liability
8.1
No liability is accepted for any direct or indirect cost,
damage or expense relating to property or injury or loss to any
person firm or company or for any loss of profits or production
arising out of or occasioned by any defect in or failure of
materials or for parts thereof supplied by the Company or other
consequential loss howsoever arising (except to the extent that
any such liability may be excluded by statute).
8.2
The Company’s liability whether in respect of one claim
or in aggregate arising out of any contract shall not exceed the
purchase price payable under the contract.
8.3
Where the customer accepts or has been deemed to have
accepted any goods, then the Company shall have no liability
whatever to the customer in respect of those goods.
8.4
Illustrations, weights, measures, specifications and
performance schedules set out in the sales literature of the
Company form no part of this contract.
9.
Delivered quantity
9.1
The Company reserves the right to over or under-deliver
to the extent of 5% of the quantity given on the quotation,
except for batches of 20 or less when the quantity that may be
over or under delivered will be on item only. The Company will
then invoice pro rata for the appropriate quantity.
10.
Intellectual property
10.1
The specifications and designs of the goods (including
the copyright, design right, or other intellectual property in
them) shall as between the parties be the property of the
Company. Where any designs or specifications have been supplied
by the customer for manufacture by or to the order of the
Company then, the customer warrants that the use of those
designs or specifications for the manufacture, processing,
assembly or supply of the goods shall not infringe the rights of
any third party.
10.2
The customer shall indemnify the Company in full against
all liability and cost of any infringement (alleged or proven)
by the customer of any patent, copyright or other intellectual
or industrial property.
10.3
The customer shall not alter, deface, reproduce or use
any of the Company’s trademarks.
10.4
All drawings, documents and other information supplied by
the Company are supplied on the express understanding that the
customer will not without written consent from the company.
12.4.1 Give away, loan, exhibit or sell any such drawings or
extracts there from or copies thereof
12.4.2 Use them in any way except in connection with the
components for which they are used.
11.
Customer drawings
11.1
The company accepts no responsibility for the accuracy of
information or drawings supplied by the customer.
11.2
The customer shall indemnify the Company from and against
all actions, claims costs, and proceedings that arise due to the
manufacture of components according to the drawings and
specifications of the customer, where such drawings and
specifications of the customer shall be erroneous.
12.
Insolvency or other default of the customer.
12.1
If the customer fails to make payment for the goods in
accordance with the contract of sale or commits any other breach
thereof or if any distress or execution shall be levied upon any
of the customer’s goods or if the customer offers to make any
arrangement with its creditors or commits an act of bankruptcy
or if any petition in bankruptcy is presented against the
customer or the customer is unable to pay its debts as they fall
due or if being a limited company any resolution or petition to
wind up the customer (other than for the purpose of amalgamation
or reconstruction without insolvency) shall be passed or
presented of if a receiver, administrator, administrative
receiver or manager shall be appointed over the whole or any
part of the customer’s business or assets or if the customer
shall suffer any analogous proceedings under foreign law, all
sums outstanding in respect of the goods shall become payable
immediately. The Company may in its absolute discretion and
without prejudice to any other rights that it may have.
14.1.1
Suspend all future deliveries of goods to the customer
and/or terminate the contract without liability upon its part
and/.or
14.1.2
Exercise any of its rights pursuant to clause 9.
13.
Set off and counterclaim
13.1
The customer may not without payment of any invoice or
other amount due to the Company by reason of any right of
set-off or counterclaim that the customer may have or allege to
have or for any reason whatsoever.
14.
Back orders
14.1
The Company shall be entitled to a general lien on all
goods of the customer in the Company’s possession (including
goods of the customer that have been paid for) for the unpaid
price of all goods sold to the customer by the Company under
this or any other contract.
15.
Sub-contracting
15.1
The Company may license or sub-contract all or any part
if its rights and obligations under this contract without the
customer’s consent.
16.
Force majeure
16.1
The Company shall not be liable for any default due to
any act of God, war, strike, lockout, industrial action, fire,
flood, drought, tempest or any other event beyond the reasonable
control of the Company.
17.
Notices
17.1
Any notice required to be served pursuant to this
contract of sale shall be in writing and served by first class
post, by hand or by facsimile on the Company at the Company’s
registered office or principle place of business, and on the
customer at the customer’s registered office or principle place
of business.
18.
Proper law of the contract
18.1 This
contract is subject to the law of England and Wales
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