CONDITIONS OF SALE
“acknowledgment of order” means the written acknowledgment issued by the seller in response to an order issued by the buyer that is acceptable to the seller (in its absolute discretion).
“business day” means any day other than a Saturday, Sunday or bank or public holiday in England.
“buyer” means the person, firm, company or other legal entity who buys or has agreed to buy the goods referred to in the acknowledgments of order.
“conditions” means these terms and conditions of sale
“contract” means the contract between the seller and the buyer for the sale and purchase of the goods in accordance with the contract documents.
“contract documents” means the acknowledgement of order and these conditions.
“goods” means that goods and/or services as specified in the seller’s acknowledgment of order.
“seller” means Thermocable (Flexible Elements) Limited (Company No: 747791) registered in England at Pasture Lane, Clayton, Bradford BD14 6LU.
a) Quotations are valid for 30 days from their date of issue unless otherwise stated. Quotations are not offers that are capable of acceptance. Instead, a quotation is an invitation to the buyer to issue an offer, in the form of an order, to the seller.
b) The seller reserves the right to invoice at prices ruling at the date of the acknowledgement of order.
c) All prices are quoted exclusive of V.A.T. which will be charged at the applicable rate.
a) These conditions apply to the contract to the exclusion of any other terms that the buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
b)The buyer’s order constitutes an offer by the buyer to purchase the goods in accordance with these conditions. The buyer’s order shall only be deemed to be accepted when the seller issues a written acknowledgement of order, at which point the contract between the parties shall come into existence, upon the terms of the contract documents.
a) All accounts are strictly net. The price applicable to the contract is set out in the acknowledgment of the order. Payment must be made within the credit period set out in the acknowledgment of order or (if no such terms are set out) within 30 days of the invoice date. Time for payment is of the essence of this contract.
b) If the buyer fails to make any payment due to the seller under the contract by the due date for payment, then (i) the seller reserves the right to suspend any delivery of goods to the buyer (whether such late payment relates to those deliveries or not), and (ii) the buyer shall pay costs and interest on the overdue amount at the applicable rate from time to time under the Late Payment of Commercial Debts (Interest) Act 1998. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The buyer shall pay the interest together with the overdue amount.
c) The buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the buyer against any amount payable by the seller to the buyer.
A contract once formed as described in clause 3 cannot be cancelled, deferred or altered by the buyer except by mutual written agreement, subject to such terms as the seller may wish to impose.
6) DELIVERY AND RISK
a) Delivery shall be “ex works Bradford” (and all prices are quoted on this basis) unless otherwise agreed in writing. The buyer shall collect the goods from the seller’s premises described above within three business days of the seller notifying the buyer that the goods are ready. Delivery is completed on the completion of loading of the goods onto the vehicle of the buyer’s nominated carrier, at the seller’s premises.
b) If the seller agrees to arrange delivery of the goods to the buyer’s premises (or other agreed location), such carriage will be charged (and paid for by the buyer) at the current carrier’s rates.
Any dates quoted for delivery are approximate only, and the time of delivery is not of the essence.
d) If the buyer fails to take delivery of the goods within three business days of the seller notifying the buyer that the goods are ready, then (i) delivery of the goods shall be deemed to have been completed at 9.00 am on the third business day after the day on which the seller notified the buyer that the goods were ready; (ii) risk in the goods shall transfer on the date specified in (i) above; and (iii) the seller shall store the goods until delivery takes place, and charge the buyer for all related costs and expenses (including insurance). If ten business days after the day on which the seller notified the buyer that the goods were ready for delivery the buyer has not taken delivery of them, the seller may resell or otherwise dispose of part or all of the Goods.
e) If the seller agrees to arrange delivery of goods to the buyer, delivery of the goods by the seller’s nominated carrier to the buyer’s premises shall constitute delivery to the buyer and risk therein shall upon such delivery pass to the buyer.
f) If the goods are not received by the buyer within ten days from the date of the relevant advice of despatch/invoice, the seller must at once be informed.
g) Unless otherwise agreed in writing the seller shall be entitled to make partial deliveries or deliveries by instalments and the conditions herein contained shall apply to each partial delivery.
7) TRANSFER OF PROPERTY
a) Title to the goods shall not pass to the buyer until the seller receives payment in full (in cash or cleared funds) for the goods and any other goods that the seller has supplied to the buyer.
b)Until title to the goods has passed to the buyer, the buyer shall:
i) store the goods separately from all other goods held by the buyer so that they remain readily identifiable as the seller’s property;
ii) not remove, deface or obscure any identifying mark or packaging on or relating to the goods;
iii)maintain the goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery.
c) If before title to the goods passes to the buyer the buyer becomes subject to any of the events listed in clause 13(b) of these conditions, then, without limiting any other right or remedy the seller may have, the buyer’s right to resell the goods or use them in the ordinary course of its business ceases immediately.
d) So long as the property in and title to the goods remains in the seller, the seller shall be entitled to retake possession of the goods at any time (whether or not the such goods have been fixed to or incorporated in any other goods) and for that purpose to enter upon any premises where the goods are kept.
e) Notwithstanding that the title to and property in the goods has not passed to the buyer, the buyer shall be entitled to sell the goods or any parts thereof in the ordinary course of its business, but such sales shall be deemed to be for the account of the seller and any proceeds thereof shall be held on trust by the buyer on behalf of the seller until the buyer has paid the price in full to the seller. For the avoidance of doubt a sale in the ordinary course of the business shall not include a sale by the buyer of the whole or part of its business or a disposal of its stock on cessation of its business or by or at the direction of an insolvency practitioner.
a) The seller guarantees to the buyer that the goods will be free from defects caused by faulty materials or poor workmanship for the period of twelve months from the date of delivery. Under this guarantee the seller will, at the seller’s sole option, either repair or give a replacement of equivalent quality or issue credit to the buyer for any goods found to be defective caused by faulty materials or poor workmanship provided that:-
i) the seller is notified within seven days of the discovery of any such defects by the buyer and in any event not later than twelve months from the date of delivery of the goods.
ii) The defective goods are returned to the seller, transportation charges being paid by the buyer
iii) Examination by the seller of such goods discloses to its satisfaction that such defects exist and have not been caused by misuse, neglect, accident, improper storage, installation or handling, or by repair or alteration not effected by the seller
iv) the buyer has fully complied with the Sellers instructions (whether oral or written) and
v) the buyer shall pay to the seller the cost (as certified by the seller) of any examination of such goods as a result of which the seller does not admit liability.
b) The guarantee does not extend to:-
i) expendable materials:
ii) any goods or parts thereof supplied by but not manufactured by the seller, but the seller will, so far as possible, pass to the buyer the benefit of any guarantee given to the seller by the manufacturer thereof.
c) Except as set out in these conditions, all other conditions warranties and representations express or implied and whether by statute or common law or otherwise are excluded to the fullest extent permitted by law.
a) Any recommendation or suggestion relating to the use of the goods made by the seller is given in good faith but it is for the buyer to satisfy itself of the suitability of the goods for its own particular purpose and it shall be deemed so to have done.
b) Accordingly, unless otherwise expressly agreed in writing the seller gives no warranty as to the fitness of the goods for any particular purpose even though that purpose may be specified in the buyers order and any implied warranty or condition (statutory or otherwise) is excluded.
10) LIABILITIES AND INDEMNITY
a) Nothing in these conditions shall limit or exclude the seller’s liability for:
i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
fraud or fraudulent misrepresentation; or
any other matter in respect of which it would be unlawful for the seller to exclude or restrict liability.
Subject to clause 10(a) above:
the seller shall under no circumstances whatsoever be liable to the buyer (or to any other person, firm or company in respect of any claim howsoever arising), whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the contract; and
ii) the seller’s total liability to the buyer in respect of product liability claims caused by faulty materials or workmanship arising under or in connection with either this contract, or any other contract between the buyer and the seller formed in the same calendar year as this contract, and whether such claims arise in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed £500,000.
iii) the seller’s total liability to the buyer in respect of any other liability outside of that referred to in clause (10)(b)(ii) above, arising under or in connection with this contract, and whether such claims arise in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the goods to which the liability relates.
iv) The buyer shall indemnify the seller against all claims by, and all loss or damage to; any other person, firm, company or property directly or indirectly connected with the acquisition, use operation or possession of any goods supplied, or services provided, or agreed to be provided by the seller under contract with that buyer, whether such claim, or loss or damage arises from breach of contract or third party rights, or by, or from the negligence of the seller or its employees (other than for death or personal injury caused by such negligence) or its suppliers, subcontractors or agents, or otherwise (and including without limitation from a product recall made by the buyer or any third party), and such indemnity (and all other provisions of this clause 10) shall continue in force in relation to the subject matter of the contract between the seller and the buyer, notwithstanding that the parties remaining obligations under the contract have been discharged or otherwise terminated.
11) INTELLECTUAL PROPERTY
The buyer acknowledges that all intellectual property rights including without limitation all patents, know-how, registered and unregistered trade marks and service marks (including any trade, brand or business names), domain names, registered and unregistered designs, design rights, utility models, copyright, rights of manufacture and commercial exploitation, applications for any of the foregoing and the right to apply for any of the foregoing in any part of the world and any similar rights situated in any country throughout the world that exist or are capable of existing in the goods vest absolutely in the seller (both before and after any sale to the buyer).
12) RIGHTS OF THIRD PARTIES
No term of the contract shall be enforceable under Contract (Rights of Third Parties) Act 1999 by a person who is not a party to the contract but this does not affect any right or remedy of a third party which is available apart from under the Act.
13) TERMINATION & FORCE MAJEURE
a) The seller shall not be under any liability of whatsoever kind for non performance in whole or part of its obligations under the contract due to causes beyond the reasonable control of either of the seller or of the seller’s suppliers. In any such event, the seller may, without liability, cancel or vary the terms of the contract or extend the time for performing the contract for a period of at least equal to the time lost by reason of such event.
b) Without limiting its other rights or remedies, the seller may terminate this contract with immediate effect by giving written notice to the Buyer if:
i) the buyer commits a breach of any term of the contract and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing to do so by the seller;
ii) the buyer fails to pay any amount due under the contract on the due date for payment;
iii) the buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
iv) the buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
v) the buyer’s financial position deteriorates to such an extent that in the seller’s opinion the buyer’s capability to adequately fulfil its obligations under the contract has been placed in jeopardy.
a) The provisions of this clause 14 apply only where the seller supplies goods for export from the United Kingdom.
b) The seller reserves the right to require payment in advance of despatch of the goods.
c) The buyer is responsible, at its own cost, for complying with any legislation or regulations relating to the importation of the goods and obtaining such import licences and other consents in relation to the goods as are required from time to time and, if required by the seller, the buyer will make those licences and consents available to the seller prior to the relevant shipment.
d) If the buyer is required under any applicable law to withhold or deduct any amount from the payments due to the seller, the buyer will increase the sum it pays to the seller by the amount necessary to leave the seller with an amount equal to the sum it would have received if no such withholdings or deductions had been made.
e) Section 26(3) of the Unfair Contract Terms Act 1977 shall apply and the seller’s liability for death or injury arising directly or indirectly from the sale of the goods where the buyer’s main place of business or habitual residence is outside of the United Kingdom shall be excluded to the fullest extent permitted by law.
The seller reserves the right to sub-contract the performance of the contract or any part thereof.
The buyer shall not be entitled to assign or purport to assign any of its rights or obligations under any contract.
17) APPLICABLE LAW
The contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this contract or its subject matter or formation.
Clerical errors and/or omissions subject to correction.
If any provision of these conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these conditions and the remainder of the provision in question shall not be affected thereby.
20) DATA PROTECTION