TERMS AND CONDITIONS – BOALLOY INDUSTRIES LTD
1. Definitions – In these Conditions -
"CONTRACT" means the contract for the purchase and sale of the Goods or the Services (as the case may be).
"CUSTOMER" means the person, firm or company to whom a quotation is addressed or otherwise communicated, or by or on behalf of whom an order is placed.
"GOODS" means the articles or things described in our quotation, or otherwise ordered and, any goods supplied in substitution for, or in addition to, such goods and any services supplied or work done in connection with the Goods, or with the said replacement substitute or additional goods.
"SELLER" means Boalloy Industries Ltd (Registered in England under number GB2706460)
"SERVICES" means any work the subject of a quotation which is to be performed by the Seller or any sub-contractor of the Seller.
"WRITING" includes e-mail, facsimile transmission and comparable means of communication.
2. General Unless otherwise specifically agreed in writing by the Seller, these conditions, which supersede any earlier sets of conditions appearing on the Seller’s quotations or elsewhere, shall override any terms or conditions stipulated incorporated or referred to by the Customer, whether in the order or in any negotiations, and no verbal quotation or undertaking will be binding on the Seller.
3. Quotations Any quotation by the Seller constitutes an invitation on the part of the Seller to be accepted in writing by the Customer within 60 days of the date of the quotation, and if not accepted, will lapse. The Seller reserves the right to withdraw any quotation at any time within the said 60 day period. Any order from the Customer which constitutes the Customer’s acceptance of the Seller’s quotation may not be withdrawn by the Customer.
4. Basis of Sale (1) The Seller shall sell and the Customer shall purchase the Goods or Services (as the case may be) in accordance with any written quotation of the Seller or any written order of the Customer which is accepted in Writing by the Seller or pursuant to which the Seller has delivered the Goods or Services, subject in all cases to these Conditions. (2) The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Customer acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed. (3) If the Contract relates to services or work to be carried out in respect of any goods supplied by the Customer the Seller shall not be liable for any defects arising as a result or consequence of any faults or defects contained in or inherent or latent in the Goods or due to their packing or storage or processing or otherwise howsoever. (4) Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
5. Orders and Specifications (1) No order submitted by the Customer shall be deemed to be accepted by the Seller unless or until confirmed in writing by the Seller or the Seller has delivered the Goods or Services. (2) The Customer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Customer, and for giving the Seller any necessary information relating to the Goods or Services within a sufficient time or such other time as may be agreed to enable the Seller to perform the Contract within its terms. (3) The quantity, quality and description of any specification for the Goods or the Services shall be those set out in the Seller’s quotation (if accepted by the Customer) or the Customer’s order (if accepted by the Seller) PROVIDED THAT all specifications, drawings and illustrations accompanying the quotation or contained in the Seller’s catalogues price lists or advertisements shall be regarded as approximate only and shall not form part of the Contract unless expressly so stated in the quotation. (4) If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Customer, the Customer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for any infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Customer’s specification or in connection with the infringement of any applicable safety or other statutory requirement. (5) The Seller reserves the right to make any changes in the specifications of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
6. Warranty (1) The warranty period is 12 months from invoice date or as otherwise agreed in Writing. (2) Subject to the conditions set out below the Seller warrants that the Goods or Services will comply with the provisions of Clause 5 (3) in relation to quantity, quality and description of and any specification for the Goods or Services subject to such tolerances as are reasonable and as are normally accepted in the trade. In the event that the Customer alleges that any of the Goods or Services are not in accordance with such quantity, quality, description or specification the Customer must notify the Seller in Writing within 7 days of discovery and the Customer’s claim shall be subject to the provision that the Seller will by replacement or repair make good at the Seller’s works defects arising from faulty workmanship of the Seller or defects in the quality of the Goods provided that the Customer shall have given written notice as aforesaid and provided always that the Seller shall have the discretion to discharge its obligation hereunder by repayment of any sum paid by the Customer in respect of the defective goods or work. (3) The Seller shall have no liability under the above Warranty (or any other warranty condition or guarantee) if the total price of the goods has not been paid by the due date of payment.
7. Exclusion of Conditions and Representations The Warranties contained in Clause 6 hereof are given in lieu of any other conditions or warranties whether statutory or otherwise, expressed or implied, and no such conditions or warranties are made by the Seller relating to the Goods or their suitability for any particular purpose or under any specific conditions notwithstanding that such purpose or conditions may be known by or made known to the Seller. Prospective Customers should satisfy themselves using their knowledge of the circumstances in which and the purpose for which the Goods may be used that the Goods meet their requirements.
8. Exclusion of Liability Except as provided in Clause 6 hereof (or in respect of death or personal injury caused by the Seller’s negligence) the Seller shall not be liable to the Customer in respect of any loss or damage or liability whatsoever suffered or incurred by the Customer in any circumstances and howsoever caused and whether as a consequence or arising out of or caused directly or indirectly by any breach by the Seller of this contract or any term or terms thereof or as a consequence or arising out of or caused by the negligence of the Seller its servants or agents or otherwise howsoever.
9. Delivery and Risk (1) Any time or date requested by the Customer or arranged by the Seller for delivery is given and intended as an estimate only and the Seller shall not be liable to make good any damage or loss whether arising directly or indirectly out of delay in delivery. (2) The risk in the Goods shall pass to the Customer at the point of delivery as specified in these Conditions, or if the Customer wrongfully fails to take delivery of the Goods, at the time when the Seller has tendered delivery of the Goods, and the Seller shall have no responsibility for the safety of the Goods thereafter. (3) Unless otherwise specified in the Contract delivery will take place by delivery to the Customer its servants or agents at the Seller’s works. The Goods shall be removed by the Customer at its own expense within 7 days after the dispatch by the Seller to the Customer or the Customer’s agent of a notice that the Goods are ready for collection save the Seller shall not be obliged to make delivery until full payment has been made in respect of any outstanding accounts on any other contracts between the parties hereto. In the event that the Customer does not remove the Goods as hereinbefore provided the Seller shall be entitled to charge the Customer for storage of the Goods at the Seller’s works at the rate of 10% p.a. of the Price. (4) Any delay arising as a result of the instructions or lack of instructions of the Customer or by reason of any act or omission of the Customer or by any cause whatsoever beyond the control of the Seller (including strikes, lockouts, fire, explosion, shortage of raw materials, delay in delivery of materials by the Seller’s suppliers, state of war, civil strife or sabotage) shall give rise to reasonable extension of time and the contract price shall be increased to cover any extra expense incurred by the Seller and due thereto. This provision shall be in addition to and not in substitution for any payment of damages for which the Customer may become liable in respect of his failure to take delivery at the appropriate date. (5) After the passing of property in accordance with Clause 14 hereof the Customer shall be responsible for any loss or damage to the goods howsoever caused whilst at the Seller’s works or elsewhere. (6) The Customer shall accept any delivery of the Goods notwithstanding that such delivery may vary below the quantity ordered. Each delivery shall be deemed to be a separate transaction.
10. Price (1) The price quoted for the Goods / Services is for the quantity specified in the quotation or, where no price has been quoted, the price in the Seller’s current price list (and pro rata for any greater or less quantity) exclusive of value added tax or any other fiscal duties and may be varied by the Seller to take account of any variations before delivery to meet any increases in costs of manufacture or transportation or in the rates of exchange of currency or in any other expenses incurred by the Seller. (2) Where the Seller has incurred any costs including but without limitation the cost of purchasing raw materials or packaging based on the Customer’s requirements or estimates of its requirements the Seller shall be entitled to invoice the Customer for the price of such items at the time when such items would be used in the normal course in accordance with the Customer’s said estimates.
11. Payment (1) The Seller shall be entitled to invoice the Customer for the price of the Goods/Services on or at any time after delivery of the Goods. (2) Payment of the price shall be made on collection or delivery, or as specified in the Contract unless other arrangements have been expressly made in Writing. Time of payment shall be of the essence. All amounts due and owing to the Seller shall bear interest at 4% p.a. above HSBC Bank Plc overdraft rate from time to time calculated from the day following that on which the amount becomes payable until payment. Payment by cheque shall not be deemed to constitute payment for the purposes of this Contract until the cheque is honoured. The Customer shall not be entitled to make any deduction from the price of the Goods or the Services by way of settlement counterclaim or otherwise howsoever.
12. Lien and Set Off (1) The Seller shall be entitled to a lien on any property of the Customer held by the Seller and if the Customer shall supply the trailer or other items in respect of which the work is to be done and does not pay for the work the Seller shall be entitled to resell such trailer or other items to recover the price. (2) The Seller shall be entitled to set off any amount owed by the Seller to the Customer against any amounts owed by the Customer to the Seller.
13. Intellectual Property (1) All artwork drawings models formulations or descriptive data supplied to the Customer is done so on the basis that it shall remain the sole property of the Seller and shall not form part of the Contract. The Customer shall keep all such property strictly confidential and shall not publish or communicate to a third party the content thereof nor any particulars of the Goods supplied by the Seller without the previous consent in writing of the Seller. (2) The Seller shall not in any circumstances be liable for any loss liability or expense suffered or incurred by the Customer by reason of any use or resale of the Goods which constitute an alleged or actual infringement of a patent, design, copyright or trade mark, foreign or domestic, vested in a third party.
14. Reservation of Title (1) Notwithstanding delivery of the Goods to the Customer, ownership of the Goods (both legal and equitable) will not pass but will remain with the Seller. However immediately on delivery to the Customer or into custody on the Customer’s behalf (whichever is the sooner) the risk in the Goods will pass to the Customer. Property in the Goods will pass to the Customer when all outstanding debts owed by the Customer in respect of the Goods the subject of this Contract have been paid in full. Until that date the Customer is to hold the Goods in a fiduciary capacity as bailee on behalf of the Seller, and shall be responsible for adequately insuring the Goods, and if required, shall store the Goods in such a way that they can be recognised as being held in a fiduciary capacity. (2) Notwithstanding that the Customer may hold the Goods in a fiduciary capacity only, the Seller will allow the Customer the power to use the Goods in its normal course of business and to sell the Goods to third parties and to deliver to them, on the condition that so long as the Customer is indebted to the Seller, the Customer shall assign the benefit of any claims against such third parties to the Seller; and in any event, if the Customer receives the proceeds of such sales from third parties, such proceeds are to be held by the Customer for the account of the Seller (who shall be permitted to trace such proceeds) to the extent that the Customer is indebted to the Seller under this Contract. (3) If payment by the Customer under this Contract becomes overdue, in whole or in part, or if the Customer shall commit any other breach of this Contract or any act of insolvency (as hereinafter defined), the Seller shall be entitled (without prejudice to any of its other rights) to treat this Contract as discharged, and to repossess the Goods the subject of this Contract, and to enter upon any premises where the Goods may be situate for that purpose. (4) The Customer shall, for the purposes of this Clause and Clause 15 hereof, be deemed to commit an act of insolvency if any distress or execution shall be levied upon its property or assets, or if it shall make or offer to make any voluntary arrangement with its creditors, or becomes subject to an administration order or (being an individual or firm) becomes bankrupt, or (being a Company) goes into liquidation (other than for purposes of amalgamation or reconstruction) or any encumbrancer takes possession or a receiver is appointed of any of the property or assets of the Customer; or if in the sole discretion of the Seller it appears to the Seller that the financial position of the Customer has become unsatisfactory or impaired. (5) In the event of the Seller repossessing the Goods the Customer shall be liable (notwithstanding the discharge of the contract) to pay the difference between the price of the Goods and their value on repossession, and in the event of the Seller being entitled to repossess the Goods, but being unable to do so for any reason whatsoever, the Customer shall pay to the Seller the full price thereof, less in each case any amount previously paid by the Customer for the Goods under this Contract. (6) Any administrator receiver or liquidator appointed over the assets of the Customer shall pay into a separate account any sums received from third parties in respect of sales to them of the Goods by the Customer, up to the amount of any indebtedness of the Customer to the Seller under this contract, for the sole benefit of the Seller.
15. Cancellation of Contract (1) The Customer may not cancel the Contract or any order which has been accepted by the Seller except with the written consent of the Seller and on terms that the Customer shall indemnify the Seller fully against all loss, (including loss of profit) costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation. (2) The Seller may refuse to supply the Goods in the event of the Customer committing any breach of this Contract or any act of insolvency or if at the sole discretion of the Seller it appears to the Seller that the financial position of the Customer has become unsatisfactory or impaired but such refusal shall not constitute cancellation of this Contract. (3) If performance by the Seller of its obligations under this Contract shall be hindered or prevented by industrial dispute accident breakdown of machinery shortage of materials export or import restrictions or any other cause whatsoever beyond the reasonable control of the Seller the Seller shall be entitled by notice in writing to the Customer to terminate the Contract but without prejudice to the liabilities of either party accrued before the date of termination.
16. Assignment The customer shall not without the written consent of the Seller assign this contract or any part thereof. The Seller may in its absolute discretion assign the rights but not the obligations under this Contract to any other party. In the event of such assignment, any remedies against the Seller for breach of its obligations hereunder shall be against the Seller.
17. Waiver Any waiver or waivers of one or more of these conditions shall not constitute a permanent waiver of any condition so waived or a general waiver of these conditions as a whole.
18. Notices Any notices given hereunder by the Seller may be served personally or left at the residence or place of business of the Customer or may be sent by post in which cases notice shall be deemed to have been received in the course of the post.
19. Arbitration If any dispute or difference shall arise between the Seller and the Customer under these conditions such dispute or differences shall, if the Seller shall so agree, be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the president for the time being of the Manchester Law Society and the decision of such arbitrator shall in such case be final and binding.
20. Proper Law and Jurisdiction The terms and conditions of this contract shall be subject to and interpreted and construed in accordance with English Law including the English conflicts of law and subject to Clause 19 hereof the English Courts shall have exclusive jurisdiction in any dispute which may arise save that the Seller may institute and maintain proceedings in respect of this contract in any country. In the event of any action in respect of this Contract being taken the Seller may serve any writ or other process upon the Customer by posting it to the Customer’s last known place of business.