TERMS & CONDITIONS OF SALE
1. Price of goods
1.1 The price of the Goods shall be the Seller’s quoted prices stated together with any V.A.T due thereon.
1.2 The Seller reserves the right by giving notice to the Buyer at any time prior to the delivery, to increase the price of the Goods to reflect any increase in cost to the Seller which is due to any factor which is beyond the Seller’s control including the altering of orders made by the Buyer or the failure by the Buyer to give the Seller adequate information or instructions.
1.3 The price quoted, unless expressly indicated otherwise in writing by the Seller, does not include transportation to the Buyer’s premises. All orders are taken on the basis that the Buyer will collect the Goods from the Seller’s place of business.
1.4 The Buyer shall pay the price of the Goods within thirty days of the date of the Seller’s invoice and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the buyer. The time of payment of the price shall be of the essence of the Contract.
1.5 If the Buyer fails to make payment on the due date, then in addition to its other rights and remedies the Seller has the power to:
1.5.1 Cancel the Contract and/or suspend any further deliveries to the Buyer;
1.5.2 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, despite any appropriations purported to be made by the Buyer;
1.5.3 The Seller may, without limiting its other rights, charge interest on such sums at 6 % a year above the Barclays Bank base rate from time to time in force.
2.1 Any date of delivery quoted is an estimate only and shall not be of the essence of the Contract. The Seller shall not be liable for any delay in delivery.
Delivery 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. The Seller may make delivery of the Goods in advance of the quoted delivery date on reasonable notice to the Buyer.
2.2 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 then the Seller may:
2.2.1 Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage, or
2.2.2 Sell the Goods at the best price readily obtainable and having accounted for any expenses of storage and sale, charge the Buyer for any shortfall below the quoted price.
2.3 Any claim that any Goods have been delivered damaged, are not of the correct quantity or do not comply with their description shall be notified by the Buyer to the Seller within one working day of their delivery.
2.4 Any alleged defect shall be notified by the Buyer to the Seller within one working day of the delivery of the Goods or in the case of any defect which is not reasonably apparent on inspection within one working day of the defect coming to the Buyer's attention and in any event no later than the expiration of the warranty period given by the Seller.
2.5 Any claim under this condition must be in writing and must contain full details of the claim including the part numbers of any allegedly defective Goods.
2.6 The Seller shall be afforded reasonable opportunity and facilities to investigate any claims made under this condition and the Buyer shall make the Goods available for inspection to the Seller or their agent upon reasonable written notice, such notice not being given less than 48 hours prior to the intended inspection.
2.7 The Seller shall have no liability with regard to any claim in respect of which the Buyer has not complied with the claims procedures in these Conditions.
3. Risk and retention of title
3.1 Risk of damage to or loss of the Goods shall pass to the Buyer
3.1.1 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 ready for collection; or
3.1.2 Where the Goods are to be delivered anywhere else, at the time of delivery, or if the Buyer wrongfully fails to accept delivery, at the time when the Seller has tendered the Goods for delivery
3.2 Despite delivery, ownership of the Goods remains with the Seller and shall not pass to the Buyer until the Seller has been paid the full price of the Goods
3.3 Until property in the Goods has passed to the Buyer, the Buyer shall hold the Goods as the Sellers fiduciary agent and bailee and shall keep the Goods separate from those of the buyer or anyone else and properly insured and stored, although the Buyer shall be entitled to use the Goods in the ordinary course of business.
3.4 Until property in the Goods passes to the Buyer, the Seller shall be entitled to require the Buyer to deliver up the Goods to the Seller and if the Buyer fails to do so to enter the Buyer’s premises or the premises of any third party where the Goods are stored and repossess the Goods.
3.5 The Buyer shall not be entitled to pledge or in any way charge by way of security of any debt of the Goods that remain the property of the Seller. Doing so will render all sums of money owed to the Seller by the Buyer to become due and payable immediately.
4. Cancellation or rejection
4.1 No order accepted by the Seller may be cancelled by the Buyer except with the Seller’s written agreement and only then on the basis that the Buyer shall indemnify the Seller against all loss (including profit), damages, charges and expenses incurred by the Seller as a result.
4.2 Any claim by the Buyer based on any defect in the Goods, whether or not deliveries actually refused, shall be notified to the Seller in writing within five working days of the date of delivery inclusive. Failure to do so will render any purported rejection by the Buyer as ineffective and the Buyer will be required to pay the full quoted price
5. Scope of contract
5.1 All Goods sold by the Seller to the Buyer, and all works undertaken by the Seller on behalf of the Buyer pursuant to the terms of the Contract shall, subject to the provisions of these Terms and Conditions of Sale shall have the benefit of the Seller’s Warranty for a two year period commencing with the date of the Seller’s invoice rendered in relation to the Contract
5.2 Under no circumstances shall the Seller have any
liability of whatever kind for:
5.2.1 Any defects resulting from wear and tear, accident, improper use by the Buyer or use by the Buyer except in accordance with the instructions or advice of the Seller or the manufacturer of any of the Goods or neglect or from any instructions or materials provided by the Buyer;
5.2.2 Any Goods which have been adjusted, modified or repaired except by the Seller or as authorised by the Seller;
5.2.3 The suitability of any of the Goods for any particular purpose or use under specific conditions whether or not the purpose or conditions were known or communicated to the Seller;
5.2.4 Any substitution by the Buyer of any materials or components not forming part of any specification of the Goods agreed in writing by the Seller.
6. Extenent of liability
6.1 Save in the event of death or personal injury the Seller shall have no liability to the Buyer for any loss (including loss of profit or other economic loss (direct or indirect), indirect or consequential loss) or damage of any nature (howsoever caused) or loss or damage (contractual, tortuous, breach of statutory duty or otherwise) arising from any breach of any express or implied warranty or condition of the Contract or any negligence, breach of statutory or other duty on the part of the Seller or in any other way out of or in connection with the performance or purported performance of or failure to perform the Contract except:
6.2 If the Buyer notifies the Seller in writing of a warranty claim:
6.2.1 Then the Seller shall, at its option, replace with similar Goods any Goods which are missing, lost or damaged or do not comply with their description, or allow the Buyer credit for their invoice value or repair any damaged Goods;
6.2.2 The collection of any repaired or replacement Goods shall be at the Seller's premises or other collection point specified for the original Goods.
6.3 Where the Seller is liable in accordance with this condition in respect of only some or part of the Goods the Contract shall remain in full force and effect in respect of the other or other parts of the Contract and no set-off or other claim shall be made by the Buyer against or in respect of such other or other parts of the Contract.
6.4 The Seller shall not be liable where any Goods, the Price of which does not include carriage, are lost or damaged in transit and all claims by the Buyer shall be made against the carrier. Replacements for such lost or damaged Goods will, if available, be supplied by the Seller at the prices ruling at the date of despatch.
6.5 In no circumstances shall the liability of the Seller to the Buyer under this Condition exceed the invoice value of the Goods.
7.1 Where the Seller is required to design the Goods specifically to meet the Buyer’s order the ownership of that design shall remain with the Seller throughout.
7.2 The Buyer is required to approve the proposed design of the Goods prior to their delivery. Failure to do so will be interpreted as an implied acceptance that the design is acceptable to the Buyer as being true to its specifications and suitable for its purposes.
7.3 The Buyer shall indemnify the Seller for all damages, costs and expenses awarded against the Seller or incurred by the Seller in settlement of any claim of infringement of the intellectual/industrial property rights which result from the Seller’s use of the Buyer’s specifications.
7.4 The Seller reserves the right to make any changes in the specification or design of the Goods which are required to conform with any applicable statutory or EC requirement, or which do not affect the Goods’ quality or performance.
8.1 Any typographical, clerical or other error or omission in any documentation supplied by the Seller may be corrected without any liability on the Seller’s part.
8.2 Any part of the Buyer’s property removed in the course of the fitting of the Goods, should fitting form part of the Contract, shall be stored by the Seller for thirty days after the date of delivery, after which time such property will be disposed of.
8.3 Should the Buyer enter into any insolvency arrangements or proceedings whether voluntary or not, or should the Seller reasonably suspect that this may shortly be the case then the Seller, in addition to its other rights and remedies, shall be entitled to cancel the Contract and suspend all further deliveries without liability and if Goods have been delivered and not paid for, then the Contract price shall become immediately due, despite all other arrangements.
8.4 The Buyer is responsible for all duties arising from the entry of the Goods into any other country. In export cases the Buyer shall be responsible for arranging the testing and inspection of the Goods at the Seller’s premises before shipping. The Seller shall not be liable for any defect which would be apparent in the course of such inspection. The Buyer undertakes not to offer these Goods for resale in any country notified by the Seller to the Buyer at or before the service of the acknowledgement of order, or to sell the Goods to any person whom it reasonably suspects may offer the Goods for resale in any such country
8.5 Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be referred to arbitration appointed by agreement or, in default, by the Courts.
8.6 The Contract is governed by English Law and the Buyer will submit to the exclusive jurisdiction of the English Courts.
In these Conditions:
“Conditions” means the standard terms and conditions of sale set out in the document and unless the Contract otherwise requires, includes any special terms and conditions agreed in writing by the Buyer and Seller.
“Contract” means the Contract for the sale of the Goods to the Buyer, to include where relevant installation of the same in whole or part.
“Buyer” means the person or Company accepting a quote for the Seller for the sale of the Goods, or whose order for the Goods is accepted by the Seller.
“Goods” means the Goods (including any instalment of the Goods or any part of them) which the Seller is to supply in accordance with these Conditions.
“Seller” means McPhee Bros (Blantyre) Limited of 58 John Street, Blantyre, Glasgow, G72 0JF, Scotland, UK.
“Writing” includes telex, cable, email, fax or similar.
References to statute are to the relevant amended versions at the time of the Contract. The headings of the Conditions are for convenience only and do not affect their interpretation.
TERMS & CONDITIONS OF PURCHASE
1. In this agreement the following words have the following meanings.
“Buyer” McPhee Bros (Blantyre) Limited
“Contract” any contract for the purchase of Goods and or equipment by the Buyer from the Seller.
“Goods” the Goods and equipment specified in the Order and all parts or components of them
“Order” the Buyer’s order printed overleaf to the Seller in respect of the Goods.
“Seller”' the supplier to whom the Order is issued.
“Legal Obligations” any present or future statute, statutory instrument or bylaw, or any present or future regulation, order, direction, code of practice or requirement of any statutory, public, local or other competent authority or court of competent jurisdiction insofar as it relates to the Goods or to its use irrespective of the person on whom the obligation is imposed.
2. Existence of contract
2.1 The Contract shall incorporate the Order and any specifications, drawings or conditions referred to in it, the conditions set out below and all terms and conditions implied by law.
2.2 Except as expressly provided for in these Terms and Conditions no variation or amendment of these Terms and Conditions or oral promise or commitment related to them shall be valid unless committed to writing and signed by or on behalf of both parties.
2.3 These conditions shall be incorporated in the Contract to the exclusion of any terms or conditions stipulated or referred to by the Seller.
3. Supply of documents
3.1 The Seller shall:
3.1.1 On despatch of the Goods or completion of any work send detailed advice notes (which shall accompany the Goods) and invoices in which VAT will be shown as a strictly net item;
3.1.2 Mark the Buyer's order numbers and any part numbers on all invoices, advice notes, statements, correspondence packages and packing.
4. Terms of payment etc
4.1 The terms of payment are cash on the last day in the month following that in which the Goods were delivered unless otherwise agreed.
4.2 Without prejudice to any other remedy the Buyer may suspend or delay payment without loss of prompt payment discount if the Seller fails to comply with the provisions of condition 3.
5.1 The Seller shall adequately pack and protect the Goods against damage and deterioration and deliver them not earlier or later than the time or times specified in the Order at the delivery point or points specified in the Order or as the Buyer directs.
5.2 The Buyer shall have no responsibility for packing materials or cases.
5.3 The Seller shall furnish such timetables, programmes of manufacture or completion as the Buyer requires and shall promptly advise the Buyer in writing if such programmes are or are likely to be delayed. The time of delivery of the Goods is of the essence of the Contract.
5.4 The Seller shall be responsible for any expenses incurred to deliver any incorrectly delivered Goods to the correct delivery point or return any items delivered in excess of the quantity specified in the Order.
6. Passing of title and risk
6.1 Subject to Clause 7.2 below title in all components and materials for the Goods and tools to be used exclusively in connection with the Goods shall pass to the Buyer as soon as they are allocated by the Seller to the Contract and in all documents of any kind including drawings, designs, test certificates of quality, parts lists and manuals as soon as they are prepared or obtained by the Seller. The Seller shall clearly mark and store all such items so that they can be identified as the property of the Buyer, make them available for inspection by the Buyer at any time and comply with all instructions of the Buyer with regard to them.
6.2 Notwithstanding the earlier passing of title, risk in the Goods shall not pass to the Buyer until delivery.
7.1 If the Seller defaults in any of its obligations under the Contract, becomes insolvent, has a receiver a ppointed of its business or is compulsorily or voluntarily wound up or if the Buyer bona fide believes that any of such events may occur the Buyer shall be entitled, at its discretion without prejudice to any other remedy, to suspend the performance of or terminate the Contract and in the event of termination to keep or take possession of any Goods or of any items belonging to the Buyer and to enter any premises of the Seller for that purpose.
7.2 If any Goods do not conform to the Contract on any grounds at all (including without limitation by reason of quality or being unfit for the purpose for which they are required) the Buyer shall be entitled at its discretion without prejudice to any other remedy to exercise any one or more of the following rights:
7.2.1 Reject the Goods in whole or in part;
7.2.2 Permit the Seller to replace, repair or reinstate the Goods so that they conform to the Contract; and
7.2.3 Carry out or have carried out at the Seller's expense such work as is necessary to conform the Goods to the Contract.
7.3 If the Buyer terminates the Contract the Seller shall return to the Buyer all payments made and if the Buyer rejects any Goods the Seller shall return all payments already made for the rejected Goods. Where on termination the Buyer elects to keep or take any Goods it shall account to the Seller for them at a proportion of their price or their value to the Buyer whichever is less but otherwise no compensation shall be payable to the Seller on termination or rejection.
7.4 None of the demand for or the acceptance of payments under these Terms and Conditions or the failure by the Buyer to enforce any of these Terms or Conditions at any time or for any period will release or exonerate or in any way affect the liability of the Seller or be a waiver of:
7.4.1 These terms or condition;
7.4.2 The right of the Buyer at any time afterwards to enforce each and every term and condition of these Terms and Conditions; or
7.4.3 Any penalty attached to their non-performance.
The Seller shall, at its own expense, make good any defects which under proper use appear in the Goods during a period beginning on their delivery and ending 24 months after their delivery
9. Loss and indemnity
9.1 The Seller shall compensate the Buyer in full on demand for all loss, damage or injury to the Buyer, any claim in respect of loss, damage or injury made against the Buyer by third parties and any costs and expenses (including legal and other professional advisers' fees, all economic loss (including loss of profit whether direct or indirect), loss of future revenue, reputation or goodwill or anticipated savings) which result from the Seller's failure to comply with the Contract (whether negligent or otherwise) and in particular resulting from any defect in the Goods or their materials, construction,workmanship or design (to the extent that the Seller is responsible for design) or any claim that any Goods prepared or supplied under the Contract except exclusively in accordance with a design or instruction given by the Buyer infringe or are alleged to infringe the rights of any third party claimed under or in connection with any patent, registered design, copyright or breach of confidence.
9.2 The Seller shall be at all times fully insured with a reputable insurer against all insurable liability under the Contract.
9.3 The Seller shall provide all facilities, assistance and advice required by the Buyer or its insurers for the purpose of contesting or dealing with any action claim or matter arising out of the Seller's performance or purported performance of or failure to perform the Contract.
10. Designs and intellectual property
10.1 The Goods, trademarks used in relation to or relating to the Goods, and all patterns, designs, drawings and other documents prepared in connection with the Order or the Contract or supplied to the Buyer and copyright and design right and all other intellectual property rights in those documents shall belong to the Buyer.
10.2 The Seller shall use all drawings and documents only for the purposes of the Contract and shall return them carriage paid to the Buyer on the Buyer's request at any time or if no request is made on the completion of the Contract.
10.3 The Seller shall be responsible for any errors or omissions in any drawings, calculations or particulars supplied by it whether or not such information has been approved by the Buyer.
11. Statutory and other requirements
The Seller undertakes that the Goods are safe and without risk to health when properly used and comply in all respects with all legal obligations in force at the date of delivery. The Seller shall supply in respect of the Goods such information about the use of them as is required by the Legal Obligations and enables the Buyer to comply with them so far as it is required by law to do so and proper evidence of all tests and examinations and research made in compliance with the Legal Obligations.
12. Law and jurisdiction
These Terms and Conditions shall be governed by English law and the Seller consents to the exclusive jurisdiction of the English courts in all matters regarding it except to the extent that the Buyer invokes the jurisdiction of the courts of any other country.