In these conditions “the Company” shall mean “Fernite of Sheffield Ltd” and the “Buyer”shall mean any person, firm or company placing an order with the above mentioned company.”UK” shall mean the mainland of Scotland, England and Wales. “The Conditions” means the standard terms and conditions of sale set out in this document and includes any special terms and conditions agreed in writing between the Company and the Buyer. The “Goods” means all or any products or materials supplied by the Company to the Buyer under this Agreement.
Any quotation the Company unless previously withdrawn by written notice, remains valid for acceptance for a period of thirty (30) days from, and including, the date of the quotation. Our quotations do not constitute an offer. All contracts entered into, quotations given and purchase orders accepted by Company are subject to the terms and conditions contained herein or overleaf and no others, unless otherwise agreed by Company and Buyer in writing signed by both parties. The provisions of this contract supersede any prior representations, agreements or undertakings between the parties.
(i) Whilst every effort is made to deliver goods on the dates or within the periods specified by the Company, such dates or periods shall be deemed to be estimates only. Time for delivery shall not be of the essence unless this is specifically agreed in writing between the parties. Without prejudice to the other provisions in these Conditions in the absence of such special agreement the Company accepts no liability whatsoever for any loss or damage of whatever nature and howsoever arising which may be suffered by the Buyer as a result of any failure on the part of the Company to deliver the goods on or within the dates or periods mentioned in the contract.
(ii) Without prejudice to the other provisions in these Conditions in any event Company shall not be liable for any loss or damage for delay or non-delivery if delivery be either prevented or hindered by reason of acts or omissions of the Buyer or “force majeure” which shall mean any cause not reasonably within the control of Company (including, but not limited to, Acts of God, war, riot or insurrection, blockades, embargoes, sabotage, epidemics, fires, accidents, strikes, lockouts or other industrial disturbances (whether or not at Company’s works), delays of carriers or inability to source materials, labour or manufacturing facilities).
(iii) No claim for loss, damages or for shortage in delivery can be entertained under any circumstances unless (in the case of Goods which are accepted without being examined or counted) notice in writing is given to the appropriate carrier and to Company within three (3) days of receipt of Goods. Where the Goods have not been delivered within twenty-one (21) days of the advised date the Buyer must inform Company in writing forthwith in order that Company may seek redress from the carrier.
(iv) The Buyer shall be obliged to accept delivery by instalments if Company requires and refusal by the Buyer to take delivery when tendered or to pay for any instalment within the time allowed shall entitle Company to treat the same as a repudiation of the whole contract.
(v) The Company reserves the right to regard and charge as complete a delivery or deliveries of a quantity within 10% of the quantity ordered by the Buyer.
(i) The Buyer shall indemnify the Company against all claims demands damages penalties costs and expenses for which the Company might become liable by reason of the infringement or alleged infringement of any patents registered trade marks copyright (including design copyright) or any other industrial property right or trade secret arising out of its performance of the contract in accordance with the Buyer’s specifications.
(b) Any dies, tools or gauges required for production of the Goods shall remain the Companyâ€™s property notwithstanding that the Buyer may have been debited with any sum in respect of the costs thereof.
- PROPERTY AND RISK
(i) The Goods shall remain in the Company’s ownership until the Buyer has paid in full all sums due from it to the Company on any account whatsoever. Until such time the Buyer shall hold the Goods as bailee and store them in such a way that they can be clearly and easily identified as the Company’s property, keeping them separate at all times from the Buyer’s own roperty and property of any third party. The Buyer shall also maintain the Goods in a satisfactory condition and ensure that there is proper and adequate insurance cover.
(ii) The Goods shall be at the Buyer’s risk from the time of delivery and the Buyer shall insure them against loss or damage accordingly. In the event of any loss or damage to the Goods before payment is made for the Goods, the Buyer shall hold the proceeds of any insurance payment on behalf of the Company as trustees for the Company.
(iii) The Buyer’s right to possession of the Goods shall cease if:
(a) it has not paid for the Goods in full by the expiry of any credit period allowed by this Contract; or
(b) it is declared bankrupt or makes any proposal to its creditors for a composition or other voluntary arrangement; or
(c) a receiver, liquidator or administrator is appointed in respect of the Buyer’s business.
(iv) Should the Goods be incorporated in or used as material for other goods before full payment is made to the Company then property in the whole of such goods shall be and remain with the Company until such payment has been made, or the other goods have been sold to a third party, and the Company’s rights hereunder in the Goods shall extend to those other Goods.
(v) Where the Buyer is purchasing the Goods from the Company for resale, and it has not paid for the Goods in accordance with these Conditions the Buyer may as agent for the Company sell and deliver the Goods to a third party on condition that until full payment is made as aforesaid the Buyer shall hold all sale proceeds in trust for the Company and in a separate account made know to the Company. The Buyer hereby assigns to the Company all rights and claims which the Buyer may have against its Buyers arising from such sale until payment is made in full.
- ACTION FOR PRICE
The Company may maintain an action for the price of goods sold notwithstanding that the property may not have passed to the Buyer.
Unless otherwise stated in writing, the goods shall be at the Buyer’s risk from the time at which the delivery is deemed to take place. The reservation of title contained in clause 5 above of these Conditions shall not affect the Buyer’s responsibility to effect the appropriate insurance cover for full replacement value.
The Company shall have the right to vary without notice the prices quoted in order to:
(i) conform with the Company’s list price ruling at the date of dispatch, or
(ii) reflect increases in pay or the cost of materials or transport between the date of order and the date of delivery or completion and/or
(iii) to take account of the cost of:-
(a) implementing any requests by the Buyer for the changes of delivery schedules, completion date, quantities, designs or specifications and/or
(b) delays caused by any instruction by the Buyer or by any failure of the Buyer to give adequate information or instructions.
Payment of all sums due hereunder shall be made in the currency quoted by Company within thirty (30) days of the date of the Company’s invoice. If payment is in arrear the Company had a right to charge interest on all overdue balances. Interest shall accrue on a daily basis as from the due dates of payment at the rate of 2% above the base lending rate from time to time of National Westminster Bank base rate per annum both before and after judgement until actual payment.
In the event of any amounts not being paid on the due date the Company reserves the right (any previous waiver notwithstanding) to withhold any further deliveries of goods (whether under the same or any other contract) until all arrears of payment have been settled and/or to require payment in full in advance for any further goods before making any deliveries for such goods. If for any reason the Company is unable to despatch the goods in the ordinary course of business by the virtue of the Buyer’s default payment for the goods in full shall be deemed to be due and payable on such date or dates as would have been appropriate under these provisions if there had been no delay or default by the Buyer.
(i) In the absence of default by Company in relation to Goods, no Goods may be returned for credit or replacement except on prior written approval of Company. Orders placed with and accepted by Company may not be cancelled except with the prior written consent of Company and upon payment of Company’s reasonable cancellation charges.
(ii) If the Buyer shall fail to make any payment when it becomes due or shall enter into any composition or any arrangement with its creditors, or if being an incorporated company shall have a receiver appointed, or shall pass a resolution for winding up or a Court shall make an order to that effect, or if not being an incorporated company shall have a receiving order made against it, or if there shall be any breach by the Buyer of any of the terms and conditions hereof, the Company may defer or cancel any further deliveries and treat the contract of which these conditions form part as determined, but without prejudice to its right to any unpaid purchase price for goods delivered and to damages for any loss suffered in consequence thereof.
In the event that the ultimate destination of the goods is outside the United Kingdom, the Buyer shall be responsible for the timely obtaining of and the costs of obtaining any required authorisation such as an Export Licence, Import Licence, Exchange Permit or any other governmental authorisation even though any such authorisation may be applied for by Company. Company and Buyer shall assist each other in every reasonable manner in securing such authorisation as may be required. Company shall not be liable if any such authorisation is delayed, denied, revoked, restricted or not renewed and Buyer shall not thereby be relieved of its obligations hereunder.
- LIMITATION OF LIABILITY
The Company manufactures Goods in accordance with drawings supplied by the Buyer or samples provided. Save that the Company warrants that the Goods supplied shall be manufactured in accordance with the drawings or samples provided, the Goods are supplied on the express condition that the Buyer satisfies itself by testing and/or specialists advice or carrying out appropriate research development and preliminary trials that the Goods possess all the appropriate qualities required by the Buyer and are free from substances or effects which will be detrimental to the Buyerâ€™s requirements; and all conditions and warranties (whether expressed, implied or statutory) that the Goods (or their size, shape, capacity, performance or strength, quality or other features) are fit or suitable for the purpose for which the Buyer requires them, are expressly excluded to the extent permissible by law, neither does the Company give any representation to this effect.
The Company’s liability in respect of the above warranty or any defect, inadequacy or failure in or of the Goods supplied, or for any loss or damage attributable thereto, is limited to making good (by replacement or repair of the Goods at the Company’s option) any significant defects which
(i) under reasonable and proper use appear therein within a period of 1 calendar month after the Goods shall have been despatched (Goods despatched by instalments or other successive contracts being deemed to be used by the Buyer in the order in which the same are supplied)
(ii) are notified to the Company within 7 days from discovery by the Buyer and
(iv) are due solely or principally due to defective material or workmanships; or alternatively (at the Company’s option) to repay the full purchase price paid for such Goods or to allow credit if the price shall not have been paid. Such Goods shall on request be returned carriage paid to the Company’s works. The Company shall not be under any liability in respect of such Goods which have been subjected to any or any further fabrication process or treatment before any claim is received by the Company.
The liability of Company, any subsidiary of its holding company (as defined by Section 154 Companies Act) and their servants or agents arising from any cause of action or claim whatsoever (including delay in performance, non-performance or partial performance or negligence) relating to the Goods under this contract or otherwise shall be limited to in aggregate the price to be allocated to and paid for the part of the Goods which gives rise to the cause of action or claim provided that liability for death or personal injury caused by the negligence of Company shall not be so limited. Except as expressly set forth herein and to the extent permitted by law, the Company accepts no liability whatsoever (including any liability in tort) for any consequential loss or damage of any kind arising from any defect in or failure of or unsuitability for any purpose of the Goods supplied by Company even if the same be due to any act, omission, negligence or wilful default of Company, any such subsidiary or other servants or agents or to any other cause whatsoever.
Buyer and its agents or employees shall keep confidential and not disclose to third parties or make use of in any way except in relation to the Goods supplied or to be supplied any information or data which is confidential to Company unless within the public domain.
- VARIATION AND WAIVER
Variations of this contract can only be made by written agreement signed by the parties. Failure or delay by either party to exercise any right or remedy hereunder (or part thereof) shall not operate as a waiver therefore of any remaining part thereof.
Any provision or part thereof in these Conditions which is void or unenforceable in any applicable jurisdiction shall be to the extent of such invalidity or enforceability, be deemed severable and shall not affect any other provisions or parts thereof.
- FREE ISSUE MATERIAL
Company shall be under no responsibility or liability for loss or damage however arising for the Buyerâ€™s material either while on the premises or under the control of Company or in transit.
This contract shall be governed by the laws of England as a contract made in England and the Buyer hereby submits to the non-exclusive jurisdiction of the English courts.