1. SELLER'S CONDITIONS TO PREVAIL
All contracts of sale incorporate these conditions so far as such conditions are not
varied by any special terms or conditions agreed in writing between the parties, and any
terms and conditions in the Buyer's order which are inconsistent with these conditions or
which purport to provide that the delivery of any goods or the commencement of any work by
the Seller under a contract with the Buyer shall constitute acceptance of the Buyer's
conditions, shall have no effect.
2. DELIVERY.
(a) Dates or periods of delivery named by the Seller are given and intended as estimates
only and, whilst every endeavour will be made to adhere to such estimates, the Seller
shall not be liable to make good any damage or loss arising directly or indirectly out of
delay in delivery whether or not such delay is caused by the fault of the Seller. (b) If
the Buyer is unable or unwilling to accept delivery of the goods at the time when the
goods are due and ready for delivery the Seller may at its discretion store the goods on
its premises and the Buyer shall be liable to the Seller to pay its reasonable charges
including insurance for so doing, but without prejudice to any other claim which the
seller may have in respect of the Buyer's failure to accept delivery.
3. FORCE MAJEURE.
(a) Performance of the contract is subject to cancellation or variation by the Seller if
the manufacture or delivery of any of the goods is prevented or hindered directly or
indirectly by fire, the elements, war, civil commotion, strikes or lockouts, industrial
dispute, shortage of labour, breakdown or partial failure of plant or machinery, late
receipt of the Buyer's specifications or other necessary information, acts, orders or
regulations of Government, delay on the part of any independent sub-contractor or
supplier, or any other cause whatsoever beyond reasonable control of the Seller, in any
such event no liability shall attach to the Seller by reason of any contract. (b)
Deliveries may be wholly or partially suspended and the time for such suspension added to
the original contract in the event of stoppage, delay or interruption of work during the
delivery period as a result of any of the clauses set out in the preceding sub-paragraph
(a) or any cause whatsoever beyond the control of the Seller.
4.CONSEQUENTIAL LOSS.
The Seller shall not be liable for loss of profit damage to plant or for any expenditure
incurred on goods supplied or any consequential or special loss or damage sustained by the
Buyer by reason of any breach of the contract by the Seller.
5.QUALITY & CONDITIONS.
The Seller shall not be liable for: (a) Any defect in the quality or state of goods
(except for discrepancy in weight) which would be apparent on a reasonable examination
unless the Buyer shall be given to the Seller within 14 days after receipt of the goods a
written notice specifying the matters complained of and shall thereafter afford the Seller
a reasonable opportunity of inspecting the goods before they have been used or processed.
(b) Any defect in the quality or state of the goods which would not be apparent on a
reasonable examination, unless such defects shall have been discovered within 12 months
after receipt of the goods and the Buyer shall have given to the Seller within 7 days or
such discovery a written notice specifying the matters complained of and shall thereafter
afford to the Seller a reasonable opportunity of inspecting the goods in their alleged
defective state, or (c) Any discrepancies in weight unless the Buyer shall have given to
the Seller a written notice thereof within 14 days after the receipt of the goods and also
thereafter a reasonable opportunity of witnessing a re-weigh thereof before they have been
used, processed or sold. Any dispute as to whether any goods are defective in quality or
state or otherwise not in accordance with the contract shall be referred in accordance
with the provisions of the Arbitration Act 1950 or any statuary modification or
re-enactment thereof for the time being in force to a single arbitrator to be agreed
between the Seller and the Buyer or in default of agreement to be nominated by the
President for the time being of the Law Society of England and Wales.
6.DEFECTIVE GOODS.
Provided that the Buyer has complied with the requirements as to notice in condition 5 if
the goods or any part thereof are defective in quality or state or (save for discrepancy
in weight) otherwise not in accordance with the contract then if the Seller and the Buyer
do not agree that the Buyer should accept the goods at an agreed value or that the goods
should be made good at the Seller's expense, the Seller undertakes to accept a return of
the relevant goods and at the Buyers option either to (a) repay or allow the buyer the
invoice price thereof(including freight) and any reasonable transport costs incurred by
the buyer in returning the relevant goods from the place of delivery of such goods to the
Seller or (b) replace them as soon as may be reasonably practicable. This undertaking is
given and shall be accepted by the buyer in lieu of any other legal remedy.
7.IMPLIED WARRANTIES.
Any condition warranty or statement as to the quality of the goods or their fitness for
any purpose, whether express or implied by statue, custom of the trade or otherwise is
hereby excluded unless expressed in writing by the Seller.
8.QUANTITY VARIATION.
The Seller shall be deemed to have fulfilled the contract by delivery of a quantity within
10% either way of the quantity ordered and the Buyer shall pay at the contract rate for
the quantity actually delivered.
9.RISK AND DAMAGE IN TRANSIT.
(a) From the time of despatch of the goods by the Seller until their arrival at the
address of the Buyer the risk of any loss or damage to or deterioration of the goods from
whatever cause or any costs charges or expenses incurred by the Seller as a result of
vehicle wagon detention or demurrage of ships shall be borne by the Buyer. (b) If the
Seller undertakes to transport the goods to the Buyer it shall not be liable for (i) any
loss or damage deviation delay or detention of the goods in the course of transit or for
misdelivery or short delivery until the Buyer gives to the Seller and to the carrier
within 3 days of receipt of the goods a written notice of the Buyer's complaint. (ii) non
delivery or non-arrival of the whole of any consignment of the goods or any separate
package unless the Buyer shall give to the Seller and to the carrier a written notice
thereof within 14 days of the date of notification of the despatch of the goods.
10.PART DELIVERIES.
Each part of delivery or instalment shall be deemed to be sold under a separate contract.
11.PASSING OF PROPERTY.
No property in the goods shall vest in the Buyer unless or until (I) the Buyer makes full
payment to the Seller for the goods (ii) the goods are incorporated in or utilised in the
manufacture of products of (iii) the goods are sold and delivered by the Buyer, whichever
shall be the earlier. During such period (and without prejudice to its other rights) the
Seller shall be entitled to enter any premises to inspect the goods and, if the Buyer
shall fail to make due payment, to retake and reclaim the goods. Upon delivery the goods
shall be at the risk of the Buyer.
12.TERMINATION OF THE SELLER.
The Seller shall l be entitled without prejudice to its other rights and remedies, either
to terminate wholly or in part any or every contract between itself and the Buyer or to
suspend any or every such contract in any of the following events. (a) If any debt is due
and payable by the Buyer to the Seller but is unpaid. (b) If the Buyer becomes insolvent
or being a body corporate passes a resolution for voluntary winding up except where solely
for the purpose of reconstruction, or suffers an Order of the Court for its winding up to
be made, or has a Receiver appointed (or carry out or undergo any analogous act of
proceeding under foreign law) or being an individual or partnership suspends payment of
his or their debts in whole or in part or purposes or enters into any composition or
arrangement with his or their creditors or have had a Receiving Order in Bankruptcy made
against him or them. The Seller shall be entitled to exercise its aforesaid right of
termination or suspension at any time during which the event of default giving rise
thereof has not ceased or been remedied and, in the event of any such suspension, the
Seller shall be entitled as a condition of resuming delivery under any contract between it
and the Buyer to require prepayment of or any such security a sit may require for the
payment of the price of any further delivery.
13.WITHHOLDING PAYMENT AND SET-OFF.
The Buyer shall not be entitled to withhold payment of any amount payable under the
contract to the Seller because of any disputed claim of the Buyer in respect of faulty
goods or any alleged breach of contract, nor shall the Buyer be entitled to set-off
against any amount payable under the contract to the Seller any monies which are not then
presently payable to the Seller or for which the Seller disputes liability.
14.PRICE & PAYMENT.
(a) Unless the contract expressly provides otherwise, the price payable for each delivery
shall be the Sellers ruling price as published in its price list current at the date of
despatch to which shall be added VAT and any other tax or duty relating to the sale or
delivery of the goods chargeable to the Seller and (where appropriate) the appropriate
freight and other charges as specified in the relevant carriage tariff current at the date
of despatch. Unless otherwise expressly stated in the contract, the price of such delivery
(including such freight and other charges) shall be paid in full and received by the
Seller by the last day of the month following the month in which the goods were
despatched. The Seller shall be entitled to charge interest on any sums not so paid. Such
interest shall be calculated on a day-to-day basis on the amount outstanding at the rate
of 2% above the base rate for lending of The Royal Bank of Scotland. (b) Payment shall be
made in the currency specified in the contract. All prices are quoted net and the amount
to be paid shall not be subject to any discount or deduction except as agreed in writing
by the Seller.
15.PATENTS, TRADEMARKS , ETC.
The Buyer shall indemnify the Seller against all damages penalties costs and expenses to
which the Seller may become liable as a result of work done in accordance with the Buyer's
specifications or instructions which involves infringement of any letters patent,
trademark or registered design or which constitutes the tort of passing off.
16.PATTERNS, DRAWINGS, DIES, TEMPLATES.
The Seller accepts no responsibility for the accuracy of any goods patterns drawings dies
moulds templates specifications and other such items supplied by the Buyer.
17.WAIVER OF RIGHTS.
The rights of the Seller and the Buyer shall not be prejudiced or restricted by any
indulgence or forbearance extended by either party to the other and not waiver by either
party in respect of any breach shall operate as a waiver in respect of any subsequent
breach.
18.LIMITATION ON RESALE.
(i) The goods are sold on the condition that they will not be resold by the Buyer or its
purchasers or sub-purchasers for delivery in an unprocessed state outside the territory of
the European Coal & Steel Community (the Community). The Buyer shall be responsible
for any breach of this condition and the Buyer shall also be responsible for ensuring that
no goods sold to it by the Seller for delivery outside the Community shall be re-imported
in an unprocessed state into the Community either by the Buyer or any of its purchasers or
sub-purchasers. On receipt of a written demand from the Seller the Buyer shall produce
evidence of the ultimate destination of the goods. (ii) If the Buyer resells in an
unprocessed state any goods bought from the Seller then unless such resale is made from
stock the Buyer shall comply in respect of such resale with the requirements of High
Authority Decision No.30/53 (as amended by Decisions 1/54 and 19/63 or subsequently
amended) and also comply as appropriate with High Authority Decision No 31/53 (as amended
by Decisions 32/53 2/54m 32/56 and 20/63 or subsequent amended). The references in this
clause the High Authority are to the High Authority of the European Coal & Steel
Community constituted by the Treaty of Paris of 18 April 1951.
19.PROPER LAW.
The contract shall be governed and construed in accordance with the laws of England. The
Buyer on entering into this contract submits to the jurisdiction of the English Courts.
The paragraph headings herein are only aids to reference and shall not effect the
construction of these conditions. |
