SPECIALISED WELDING PRODUCTS LIMITED – TERMS AND CONDITIONS OF SALE
1.1
The definitions and rules of interpretation
in this condition apply in these conditions. Buyer the person, firm or company who purchases the Goods from the Company.
Specialised Welding Products Limited, registered in under company number 02573967.
Contract any contract between the Company and
the Buyer for the sale and purchase of the Goods, incorporating these
conditions, together with any terms expressly stated in the Company’s Quotation
and/or Sales Acknowledgement.
Goods: any goods agreed in the Contract to be supplied to the Buyer by the
Company (including any part or parts of them).
2.1
Subject to any variation under
condition 2.2 the Contract shall be on these conditions (together with any
terms expressly stated in the Company’s Quotation and/or Sales Acknowledgement)
to the exclusion of all other terms and conditions (including any terms or
conditions which the Buyer purports to apply under any purchase order,
confirmation of order, specification or other document). In the event of any conflict, any terms set
out in the Company’s Quotation and/or Sales Acknowledgement shall take
precedence and shall apply in priority to these conditions.
2.2
These
conditions apply to all the Company's sales and any variation to these
conditions and any representations about the Goods shall have no effect unless
expressly agreed in writing and signed by a director of the Company. The Buyer
acknowledges that it has not relied on any statement, promise or representation
made or given by or on behalf of the Company which is not set out in the
Contract. Nothing in this condition shall exclude or limit the Company's
liability for fraudulent misrepresentation.
2.3 Each order or acceptance of a
quotation for Goods by the Buyer from the Company shall be deemed to be an
offer by the Buyer to buy Goods subject to these conditions. No order placed by the Buyer shall be deemed
to be accepted by the Company until a written sales acknowledgement of the
order is issued by the Company.
3.1 Unless otherwise agreed in writing,
the Company shall deliver the Goods to the Buyer’s address as stated in the
Quotation.
3.2 Any dates specified by the Company
for delivery of the Goods are intended to be an estimate and time for delivery
shall not be made of the essence by notice. If no dates are so specified,
delivery shall be within a reasonable time.
3.3 Any liability of the Company for
non-delivery of the Goods shall be limited to replacing the Goods within a
reasonable time or issuing a credit note at the pro rata Contract rate against
any invoice raised for such Goods.
4.1 Unless otherwise agreed in writing,
The Goods are at the risk of the Buyer from the time of delivery.
4.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of the Goods and all other sums which are or which become due to the Company from the Buyer on any account.
4.3 Until ownership of the Goods has
passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as
the Company's bailee;
(b) store the Goods (at no cost to the
Company) separately from all other goods of the Buyer or any third party in
such a way that they remain readily identifiable as the Company's property;
(c) not destroy, deface or obscure any identifying mark or
packaging on or relating to the Goods; and
(d) maintain the Goods in
satisfactory condition and keep them insured on the Company's behalf for their
full price
4.4 The Buyer's right to possession of
the Goods shall terminate immediately if:
(a) the Buyer enters into liquidation, fails
to observe or perform any of its obligations under the Contract, or ceases to
trade; or
(b) the Buyer encumbers
or in any way charges any of the Goods.
4.5 The Buyer grants the Company, its
agents and employees an irrevocable licence at any time to enter any premises
where the Goods are or may be stored in order to inspect them, or, where the
Buyer's right to possession has terminated, to recover them.
5.1 Unless otherwise agreed by the
Company in writing, the price for the Goods shall be as set out in the
Company's Quotation.
6.1 Subject to condition 6.4, payment of the price for the Goods is due in pounds sterling within 60 days from month end of invoice date. Time for payment shall be of the essence. No payment shall be deemed to have been received until the Company has received cleared funds.
6.2 All
payments payable to the Company under the Contract shall become due immediately
on its termination despite any other provision.
6.3 The Buyer shall make all payments due
under the Contract in full without any deduction whether by way of set-off,
counterclaim, discount, abatement or otherwise unless the Buyer has a valid
court order requiring an amount equal to such deduction to be paid by the
Company to the Buyer.
6.4 If the Buyer fails to pay the Company
any sum due pursuant to the Contract, the Buyer shall be liable to pay interest
to the Company on such sum from the due date for payment at the annual rate of
4% above the base lending rate from time to time of Barclays Bank PLC, accruing
on a daily basis until payment is made, whether before or after any judgment.
6.5 All Goods supplied on a Sale or Return basis must
be paid for, or returned, within 3 months from the date of invoice.
7.1 The
Company warrants that (subject to the other provisions of these conditions) on
delivery, and for a period of 12 months from the date of delivery, the Goods will correspond with their
specification and will be free from material defects.
7.2 The
Company shall not be liable for a breach of the warranty in condition 7.1 if:
(a) the Buyer makes any further use of such
Goods after giving such notice; or
(b) the defect arises because the Buyer
failed to follow the Company's oral or written instructions as to the storage,
installation, commissioning, use or maintenance of the Goods or (if there are
none) good trade practice; or
(c) the Buyer alters or repairs such Goods
without the written consent of the Company.
7.3 Subject
to condition 7.2, if any of the Goods do not conform with the warranty in
condition 7.1 the Company shall at its option repair or replace such Goods (or
the defective part) or refund the price of such Goods at the pro rata Contract
rate provided that, if the Company so requests, the Buyer shall, at the
Company's expense, return the Goods or the part of such Goods which is
defective to the Company.
7.4 If the Company complies with
condition 7.3 it shall have no further liability for a breach of the warranty
in condition 7.1 in respect of such Goods.
7.5 Any Goods replaced shall belong to
the Company and any repaired or replacement Goods shall be guaranteed on these
terms for the unexpired portion of the 12 month period.
8.1 Subject to condition 3 and condition
7, the following provisions set out the entire financial liability of the
Company (including any liability for the acts or omissions of its employees,
agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these conditions;
(b) any use made or resale by the Buyer of
any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or omission including negligence arising under
or in connection with the Contract.
8.2 All
warranties, conditions and other terms implied by statute or common law (save
for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to
the fullest extent permitted by law, excluded from the Contract.
8.3 Nothing
in these conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by
the Company's negligence; or
(b) under section 2(3),
Consumer Protection Act 1987; or
(c) for any matter which it would be illegal
for the Company to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent
misrepresentation.
8.4 Subject
to condition 8.2 and condition 8.3:
(a) the Company's total liability in
contract, tort (including negligence or breach of statutory duty),
misrepresentation, restitution or otherwise, arising in connection with the
performance or contemplated performance of the contract shall be limited to the
Contract price; and
(b) the Company shall not be liable to
the Buyer for loss of profit, loss of business, or depletion of goodwill in
each case whether direct, indirect or consequential, or any claims for
consequential compensation whatsoever (howsoever caused) which arise out of or
in connection with the Contract.
8.5 The Company 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 Company’s obligations in
relation to the Goods, if the delay or failure was due to any cause beyond the
Company’s reasonable control.
9.1 If any provision of the Contract is
found by any court, tribunal or administrative body of competent jurisdiction
to be wholly or partly illegal, invalid, void, voidable,
unenforceable or unreasonable it shall to the extent of such illegality,
invalidity, voidness, voidability,
unenforceability or unreasonableness be deemed severable and the remaining
provisions of the Contract and the remainder of such provision shall continue
in full force and effect.
9.2 Failure or delay by the Company in
enforcing or partially enforcing any provision of the Contract shall not be
construed as a waiver of any of its rights under the Contract.
9.3 Any waiver by the Company of any
breach of, or any default under, any provision of the Contract by the Buyer
shall not be deemed a waiver of any subsequent breach or default and shall in
no way affect the other terms of the Contract.
9.4 The Company may assign the Contract
or any part of it to any person, firm or company.
9.5 The Buyer shall not be entitled to
assign the Contract or any part of it without the prior written consent of the
Company.
9.6 The parties to the Contract do not
intend that any term of the Contract shall be enforceable by virtue of the
Contracts (Rights of Third Parties) Act 1999 by any person that is not a party
to it, save for the parties’ permitted assigns.
9.7 This Contract shall be governed by
English law and the parties submit to the exclusive jurisdiction of the English
courts.
