BAWTRY CARBON LIMITED – CONDITIONS OF SALE
In these terms and conditions the following words shall have the following meaning:
“Company” means Bawtry Carbon Limited;
“Goods” means the products, article, services or things to be supplied under the Contract;
“Buyer” means the corporate entity firm or person referred to in the Company’s quotation and/or acknowledgement of order.
- MAKING THE CONTRACT
- 2.1. The Company’s salesmen are not authorised representatives and are not authorised to accept, confirm, or vary any order nor to make any representation or promise on the Company’s behalf.
- 2.2. The quotation which comprises an estimate and is not binding on the Company is open for a period of 60 (sixty) days only from the date thereof (or such other period specified in the quotation), provided that the Company has not previously withdrawn it.
- 2.3. Any order issued by the Buyer is subject to acceptance by the Company and a contract (“Contract”) will only be formed when the Company had accepted the Buyer’s offer to buy in writing.
- 2.4. Any order made by the Buyer orally must be confirmed in writing.
- 2.5. All orders are placed under these terms and conditions alone save only where varied by supplementary conditions of supply and installation.
- 2.6. These terms and conditions exclude any other terms and conditions inconsistent therewith which a Buyer contained in any offer, acceptance or counteroffer made by the Buyer.
- 2.7. No variation of these terms and conditions is permitted unless expressly accepted by an authorised representative of the Company in writing.
No cancellation by the Buyer is permitted excepted where expressly agreed by an authorised representative of the Company in writing and then only on terms stipulated by the Company in writing.
- 4.1. All prices specified are those ruling at the date of the quotation.
- 4.2. Unless otherwise stated all prices quoted are net ex works exclusive of VAT.
- 4.3. The Company reserves the right at any time prior to delivery of the Goods to adjust the price to take account of any increase in the cost of raw materials, labour services or any currency fluctuations affecting the cost of imported materials provided always that the Company notifies the Buyer of any such adjustment in writing prior to despatch of the Goods.
- TERMS OF PAYMENT
- 5.1. All sums become due and payable under the terms and conditions not later than the end of the month following the month in which the Goods were despatched unless otherwise specified in writing.
- 5.2. Time for payment shall be of the essence.
- 5.3. The Company reserves the right to charge interest at 2% (two percent) per annum above the National Westminster Bank PLC Base Lending Rate on all overdue accounts, such interest being deemed to accrue on a day to day basis from the due date for payment under clause 5 1.
- 5.4. The Buyer shall have no right of set off, statutory or otherwise.
- 5.5 The Company reserves the right, where genuine doubts arise as to a Buyer’s financial position or in the case of failure to pay for any Goods or any delivery or instalment as aforesaid, to suspend delivery or performance of any order or any part or instalment without liability until payment or satisfactory security for payment had been provided.
If the Buyer enters into a deed of arrangement or commits an act of bankruptcy or compounds with his creditors or if a receiving order if made against him or (being a company) it shall pass a resolution or the court shall make an order that the Buyer shall be wound up (otherwise than for the purposes of amalgamation or reconstruction) or if a receiver (including an administrative receiver) shall be appointed of any of the assets or undertaking of the Buyer or if the Buyer suffers the appointment or the presentation of a petition for the appointment of an administrator or if circumstances shall arise which entitle the court to make a winding-up order or if the Buyer takes or suffers any similar action in consequence of debt or if the financial responsibility of the Buyer shall, in the opinion of the Company, become impaired or if the Buyer shall commit any breach of any part of the Contract, the Company may, without prejudice to its rights and remedies under these conditions stop all Goods in transit and suspend further deliveries and by notice to the Buyer may terminate the Contract immediately.
- 7.1. All terms quoted for delivery shall be delivered to the Buyer’s address appearing in the quotation or such other address as agreed between the Company and the Buyer.
- 7.2. Time of delivery is not of the essence.
- 7.3. The Company shall not eb liable for any loss whatsoever or howsoever arising caused by its non-delivery or by the failure to make Goods ready for collection on the due date.
- 7.4. The Company reserves the right to make delivery by instalments and to tender a separate invoice in respect of each instalment.
- 7.5. When delivery is to be made by instalments or the Company exercises its right to deliver by instalments under clause 7.4 hereof or if there be delay in the delivery of any one or more instalments for whatever reason this will not entitle the Buyer to terminate the Contract as repudiated or to damages.
- 7.6. Deviations in quantity of the Goods declared from that stated in the Contract shall not give the Buyer any right to reject the Goods or to claim damages and the Buyer shall be obliged to accept and pay at the Contract rate for the quantity of the Goods delivered.
- RETENTION OF TITLE
- 8.1. Legal and beneficial ownership of Goods shall remain with the Company until payment in full had been received by the Company:
- 8.1.1 for those Goods;
- 8.1.2 for any other Goods supplied by the Company;
- 8.1.3 of any other monies due from the Buyer to the Company on any account.
- 8.2 Until property in the Goods passes to the Buyer under clause 8.1 the Buyer shall:
- 8.2.1 be bailee of the Goods;
- 8.2.2 keep the Goods separately and readily identifiable as the property of the Company;
- 8.2.3 notwithstanding clause 8.1 the Buyer may (as between it and its Buyer only) as principal in the ordinary course of its business sell the Goods by bona fide sale at full market value or in the ordinary business use the Goods.
- 8.3. Goods shall be deemed sold or used in the order delivered to the Buyer, any resale by the Buyer of Goods in which property has not passed to the Buyer shall (as between the Company and the Buyer) be made by the Buyer as agent for the Company.
- 8.4. Any time prior to property in Goods passing to the Buyer (whether or not all payment to the Company is then overdue or the Buyer is otherwise in breach of any obligation to the Company) the Company may (without prejudice to any other of its rights):
- 8.4.1 retake possession of all or any part of the Goods and enter any premises for that purpose (or authorise others to do so) which the Buyer hereby authorises;
- 8.4.2 require delivery up to it of all or any part of the Goods;
- 8.4.3 terminate the Buyer’s authority to resell the Goods forthwith by written notice to the Buyer which authority shall automatically terminate (without notice) upon any insolvency of the Buyer or it having a receiver or administrative receiver or liquidator over the whole or any part of its assets or calling a meeting of its creditors or any execution or distress being levied on Goods in its possession.
- 8.5. The Company may at any time appropriate sums received from the Buyer as it thinks notwithstanding any purported appropriation by the Buyer.
- 8.6. Each clause and sub-clause of this clause 8 is separate severable and distinct and, accordingly, in the event of any of them being for any reason whatever unenforceable according to its terms, the others shall remain in full force and effect.
- 9.1. The Buyer is under a duty wherever possible to inspect the Goods on delivery or on collection as the case may be.
- 9.2. Where the Goods cannot be examined the carriers note or such other note as appropriate shall be marked “not examined”.
- 9.3. The Company shall be under no liability for the defects or shortages that would be apparent on careful inspection if terms of this clause are not complied with and in any event will be under no liability if a written complaint is not despatched to the Company within seven days of delivery detailing the alleged defect or shortage.
- 9.4. In all cases where defects or shortages are complained of the Company shall be under no liability in respect thereof unless an opportunity to inspect the Goods is afforded to the Company before any use is made thereof or any alteration or modification is made thereto by the Buyer.
- 9.5. Subject to clause 9.3 and 9.4 the Company shall make good any shortage in the Goods and where appropriate replace any Goods damaged in transit as soon as it is reasonably able to do so but otherwise shall be under no liability whatsoever or howsoever arising for shortage or damage.
10. LIMIT OF RESPONSIBILITY
The Company does not in any manner whatsoever exclude or limit its liability for death or personal injury resulting from its negligence. However subject to such liability for death or personal injury, the Buyer accepts that the provisions of this clause 10 set out the entire liability of the Company to the Buyer and the exclusive remedies of the Buyer against the Company under or in relation to the Contract. Accordingly, save as set out below, the Company shall have no liability of any nature whatsoever for (without limitation) any breach of its contractual obligation arising under the Contract, any representation (unless fraudulent), statement or tortious act or omission, including negligence, arising under or in connection with the Contract or in relation to other matter or thing whatsoever under or in relation to the Contract.
- 10.1. Subject tot the conditions set out in 10.2 below the Company undertakes to replace any Goods or parts thereof not previously subject to use which shall be proved to the Company’s satisfaction to be defective due to a default in workmanship or materials on the part of the Company within a period of six months from despatch of such Goods from the Company’s works.
- 10.2. The above undertaking is given by the Company subject to the following conditions:
- 10.2.1 the Company shall be under no liability in respect of any defect on the Goods arising from any drawing, design or specification supplied by the Buyer;
- 10.2.2 the Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal storage conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or alternation or repair of Goods without the Company’s approval;
- 10.2.3 the Company shall be under no liability under the above undertaking (or any other undertaking warranty condition or guarantee) if the price due for the Goods has not been paid;
- 10.2.4 the above undertaking does not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company and which the Company is able to validly enforce against any such manufacturer.
- 10.3. Subject as expressly provided in these conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
- 10.4. The Company shall have no liability of any nature whatsoever to the Buyer for any indirect, special or consequential loss or damage whether for loss of profits, goodwill or otherwise.
- 10.5. If the Company fails to deliver the Goods (any instalment) for any reason other than as set out in clause 10 or the Buyer’s default, and the Company is accordingly liable to the Buyer, the Company’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar Goods to replace those not delivered over the price of the Goods not delivered.
- 10.6. All liabilities of the Company to the Buyer determined by a court of law as not having been excluded hereunder shall be limited in total to the total price of the Goods as shown on the Company’s invoice.
11. FORCE MAJEURE
- 11.1. The Company shall not be liable for any failure to deliver the Goods arising from circumstances outside the Company’s control.
- 11.2. Non-exhaustive illustrations of such circumstances would be act of God, war, riot explosion, abnormal weather conditions, fire, flood, strikes, lockouts, Government action or regulations (UK or otherwise), delay by suppliers, accidents and shortages of materials, labour or manufacturing facilities.
- 11.3. Should the Company be prevented from delivering in the above circumstances, it shall give the Buyer written notice of this fact as soon as reasonably practicable after discovering it.
- 11.4. If the circumstances preventing delivery are still continuing three months after the Buyer receives the Company’s notice, then either party may give written notice to the other cancelling the Contract.
- 11.5. If the Contract is cancelled in this way, the Company will refund any payment which the Buyer has already made on account of the price (subject to deduction of any amount the Company is entitled to claim from the Buyer) but the Company will not be liable to compensate the Buyer for any further loss or damage caused by the failure to deliver.
The Buyer shall indemnify the Company against all actions, costs (including the cost of defending any legal proceedings) claims proceedings, accounts and damages in respect of any infringement or alleged infringement or any patent, registered design, copyright, trademark or other industrial or intellectual property rights resulting from compliance by the Company with the Buyer’s instructions whether express or implied.
The Buyer agrees upon demands to indemnify the Company against all losses, damages, injury, costs, and expenses of whatever nature suffered by the Company to the extent that that the same are caused by or related to:
- 13.1. design, drawings or specifications given to the Company by the Buyer in respect of Goods produced by the Company or the Buyer, or
- 13.2. Defective materials or products supplied by the Buyer to the Company and incorporated by the Company in Goods produced by the Company for the Buyer, or
- 13.3. The improper incorporation, assembly, use, processing, storage or handling of Goods by the Buyer.
14. SALES PROMOTION DOCUMENTATION
Whilst the Company takes every precaution in the preparation of its catalogues, technical circulars, price lists and its other literature, these documents are for the Buyer’s general guidance only and the particulars contained therein shall not constitute representation by the Company and the Company shall not be bound thereby.
Any notices to be given hereunder shall be in writing and may be delivered or sent by prepaid first class letter post or facsimile transmission and shall be deemed to have been duly given if sent or delivered to the party concerned at its address specified overleaf or such other address as that party may from time to time notify in writing and shall be deemed to have been served, if sent by post, 48 (forty eight) hours after posting and if sent by facsimile transmission, at the time of transmission.
Neither the Company nor the Buyer shall assign or transfer or purport to assign or transfer the Contract or the benefits thereof to any other person without the prior written consent of the other.
17. PROPER LAW AND JURISDICTION
The Contract shall be governed by and construed in accordance with English law and all disputes arising in connection with the Contract shall be submitted to the jurisdiction of the English courts.
The headings of these conditions are for convenience only and shall have no effect upon the interpretation thereof.
19. HEALTH AND SAFETY
The Buyer agrees to pay due regard to any information or any revised information whenever supplied by the Company (and is deemed to have been given adequate information and to have read and understood it) relating to the use for which the Goods are designed or have been tested or concerning conditions necessary to ensure that they will be safe and without risk to health at all times when they are being set, used, cleaned or maintained by any person at work or when they are being dismantled or disposed of, and the Buyer undertakes to take such steps as may be specified by the above information to ensure that, as far as reasonably practicable, the Goods will be safe and without risk to health at all times mentioned above. For these purposes, the Buyer is deemed to have been given a reasonable opportunity to test and examine the Goods before delivery.
20. THIRD PARTY RIGHTS
A person who is not party to this agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement. This clause does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.