Terms & Conditions of Supply of Goods
1. THIS AGREEMENT is dated
2. AGREED TERMS
3.1. The definitions and rules of interpretation in this condition apply in these terms and conditions (Conditions).
3.1.1. Contract: any contract between the Supplier and the Customer for the sale and purchase of the Goods, incorporating these conditions.
3.1.2. Customer: the person, firm or company who purchases the Goods from the Supplier.
3.1.3. Delivery Point: the place where delivery of the Goods is to take place under condition 6.
3.1.4. Goods: any goods agreed in the Contract to be supplied to the Customer by the Supplier (including any part or parts of them)
3.1.5. Supplier: O.L.D. ENGINEERING COMPANY LIMITED of Plot 1, Sketchley Lane Industrial Estate, Hinckley, Leicestershire.
3.2. A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
3.3. Words in the singular include the plural and in the plural include the singular.
3.4. A reference to one gender includes a reference to the other gender.
3.5. Condition headings do not affect the interpretation of these conditions.
4. APPLICATION OF CONDITIONS
4.1. Subject to any variation under condition 4.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
4.2. No terms or conditions endorsed on, delivered with or contained in the Customer’s purchase order, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
4.3. These conditions apply to all the Supplier’s sales and any variation to these conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by the managing director of the Supplier. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract. Nothing in this condition shall exclude or limit the Supplier’s liability for fraudulent misrepresentation.
4.4. Each order or acceptance of a quotation for Goods by the Customer from the Supplier shall be deemed to be an offer by the Customer to buy Goods subject to these conditions.
4.5. No order placed by the Customer shall be deemed to be accepted by the Supplier until a written acknowledgement of order is issued by the Supplier or (if earlier) the Supplier delivers the Goods to the Customer.
4.6. The Customer shall ensure that the terms of its order and any applicable specification are complete and accurate.
4.7. Any quotation is given on the basis that no Contract shall come into existence until the Supplier dispatches an acknowledgement of order to the Customer. Any quotation is valid for a period of 30 days only from its date (unless agreed otherwise), provided that the Supplier has not previously withdrawn it.
5.1. The quantity and description of the Goods shall be as set out in the Supplier’s quotation or acknowledgement of order.
5.2. All samples, drawings, descriptive matter, specifications and advertising issued by the Supplier and any descriptions or illustrations contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract and this is not a sale by sample.
5.3. If the Supplier prepares the Goods in accordance with the Customer’s specifications or instructions, the Customer must ensure that:-
5.3.1. all specifications, instructions or materials are supplied to the Supplier within a reasonable time;
5.3.2. the specifications or instructions are accurate;
5.3.3. the Goods prepared in accordance with those specifications or instructions will be fit for purpose for which the Customer intends to use them; and
5.3.4. the specifications or instructions will not result in the infringement of any intellectual property rights of a third party, or in breach of any applicable law or regulation.
5.4. The Supplier reserves the right to make:-
5.4.1. any changes to the specifications of the Goods that are necessary to ensure they conform to any applicable safety or regulatory requirements; and
5.4.2. without notice, any minor modifications to the specifications that the Supplier deems necessary or desirable.
6.1. Unless otherwise agreed in writing by the Supplier, delivery of the Goods shall take place at the Supplier’s place of business.
6.2. The Customer shall take delivery of the Goods within 5 days of the Supplier giving it notice that the Goods are ready for delivery.
6.3. Any dates specified by the Supplier for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
6.4. Subject to the other provisions of these conditions the Supplier shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Supplier’s negligence), nor shall any delay entitle the Customer to terminate or rescind the Contract unless such delay exceeds 180 days.
6.5. If for any reason, the Customer fails to accept delivery of any of the Goods when they are ready for delivery, or the Supplier is unable to deliver the Goods on time because the Customer has not provided appropriate instructions, documents, licences or authorisations:
6.5.1. risk in the Goods shall pass to the Customer (including for loss or damage caused by the Supplier’s negligence);
6.5.2. the Goods shall be deemed to have been delivered; and
6.5.3. the Supplier may store the Goods until delivery, whereupon the Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
6.6. The Customer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for loading the Goods.
6.7. If the Supplier delivers to the Customer a quantity of Goods of up to 5% more or less than the quantity accepted by the Supplier, the Customer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
6.8. The Supplier may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
6.9. Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Customer to repudiate or cancel any other Contract or instalment.
7. NON-DELIVERY OF GOODS
7.1. The quantity of any consignment of Goods as recorded by the Supplier on despatch from the Supplier’s place of business shall be conclusive evidence of the quantity received by the Customer on delivery unless the Customer can provide conclusive evidence proving the contrary.
7.2. The Supplier shall not be liable for any non-delivery of Goods (even if caused by the Supplier’s negligence) unless the Customer gives written notice to the Supplier of the non-delivery within 5 days of the date when the Goods would in the ordinary course of events have been received.
7.3. Any liability of the Supplier for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
8. RISK/TITLE OF GOODS
8.1. The Goods are at the risk of the Customer from the time of delivery.
8.2. Ownership of the Goods shall not pass to the Customer until the Supplier has received in full (in cash or cleared funds) all sums due to it in respect of:
8.2.1. the Goods; and
8.2.2. all other sums which are or which become due to the Supplier from the Customer on any account.
8.3. Until ownership of the Goods has passed to the Customer, the Customer shall:
8.3.1. hold the Goods on a fiduciary basis as the Supplier’s bailee;
8.3.2. store the Goods (at no cost to the Supplier) separately from all other goods of the Customer or any third party in such a way that they remain readily identifiable as the Supplier’s property;
8.3.3. not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
8.3.4. maintain the Goods in satisfactory condition and keep them insured on the Supplier’s behalf for their full price against all risks to the reasonable satisfaction of the Supplier. On request, the Customer shall produce the policy of insurance to the Supplier.
8.4. The Customer may resell the Goods before ownership has passed to it solely on the following conditions:
8.4.1. any sale shall be effected in the ordinary course of the Customer’s business at full market value; and
8.4.2. any such sale shall be a sale of the Supplier’s property on the Customer’s own behalf and the Customer shall deal as principal when making such a sale.
8.5. The Customer’s right to possession of the Goods shall terminate immediately if:
8.5.1. the Customer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Customer or notice of intention to appoint an administrator is given by the Customer or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Customer or for the granting of an administration order in respect of the Customer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Customer; or
8.5.2. the Customer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Supplier and the Customer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or the Customer ceases to trade; or
8.5.3. the Customer encumbers or in any way charges any of the Goods.
8.6. The Supplier shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Supplier.
8.7. The Customer grants the Supplier, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Customer’s right to possession has terminated, to recover them.
8.8. Where the Supplier is unable to determine whether any Goods are the goods in respect of which the Customer’s right to possession has terminated, the Customer shall be deemed to have sold all goods of the kind sold by the Supplier to the Customer in the order in which they were invoiced to the Customer.
8.9. On termination of the Contract, howsoever caused, the Supplier’s (but not the Customer’s) rights contained in this condition 8 shall remain in effect.
9. PRICE OF GOODS
9.1. Unless otherwise agreed by the Supplier in writing, the price for the Goods shall be the price set out in the Supplier’s price list published on the date of delivery or deemed delivery.
9.2. The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Customer shall pay in addition when it is due to pay for the Goods.
10. PAYMENT OF GOODS
10.1. Subject to condition 10.2, payment of the price for the Goods is due in pounds sterling, time for payment shall be of the essence and no payment shall be deemed to have been received until the Supplier has received cleared funds.
10.2. All payments payable to the Supplier under the Contract shall become due immediately on its termination despite any other provision.
10.3. The Customer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Customer has a valid court order requiring an amount equal to such deduction to be paid by the Supplier to the Customer.
10.4. If the Customer fails to pay the Supplier any sum due pursuant to the Contract, the Customer shall be liable to pay interest to the Supplier on such sum from the due date for payment at the annual rate of 2.5% above the base lending rate from time to time of HSBC Bank plc, accruing on a daily basis until payment is made, whether before or after any judgment. The Supplier reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
10.5. The Customer agrees to indemnify the Supplier in full and hold the Supplier harmless from all expenses and liabilities incurred by the Supplier (directly or indirectly including financing costs, legal costs on a full indemnity basis and the cost of instructing a debt recovery agency to recover a debt due to the Supplier if any) following any breach by the Customer of their obligations pursuant to the Contract.
11.1. The Customer may only cancel an order for the Goods if the Supplier agrees in writing (if the Supplier agrees then condition 11.2 applies).
11.2. If the order is cancelled (for any reason) the Customer:-
11.2.1. has no further claim against the Supplier under the Contract; and
11.2.2. is liable to pay to the Supplier for all stock (finished or unfinished) that the Supplier may hold (or to which the Supplier is committed) for the order.
12. INTELLECTUAL PROPERTY
12.1. All sketches and designs provided by the Supplier are private and confidential and the Customer may only provide such information to a third party with the Supplier’s written consent. The Customer must return all original sketches and designs to the Supplier on demand.
12.2. The copyright and all other intellectual property rights in any items provided by the Supplier to the Customer remains the property of the Supplier and unless otherwise agreed the Customer must not alter or use them for any purposes other than the one for which they are provided.
13. QUALITY OF GOODS
13.1. Where the Supplier is not the manufacturer of the Goods, the Supplier shall endeavour to transfer to the Customer the benefit of any warranty or guarantee given to the Supplier.
13.2. The Supplier warrants that (subject to the other provisions of these conditions) on delivery, and for a period of 12 months from the date of delivery, the Goods shall be of satisfactory quality within the meaning of the Sale of Goods Act 1979.
13.3. The Supplier shall not be liable for a breach of the warranty in condition 13.2 unless:
13.3.1. the Customer gives written notice of the defect to the Supplier, and, if the defect is as a result of damage in transit to the carrier, within 5 days of the time when the Customer discovers or ought to have discovered the defect; and
13.3.2. the Supplier is given a reasonable opportunity after receiving the notice of examining such Goods and the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost for the examination to take place there.
13.4. The Supplier shall not be liable for a breach of the warranty in condition 13.2 if:
13.4.1. the Customer makes any further use of such Goods after giving such notice; or
13.4.2. the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
13.4.3. the Customer alters or repairs such Goods without the written consent of the Supplier.
13.5. Subject to condition 13.3 and condition 13.4, if any of the Goods do not conform with the warranty in condition 13.2 the Supplier shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Supplier so requests, the Customer shall, at the Supplier’s expense, return the Goods or the part of such Goods which is defective to the Supplier.
13.6. If the Supplier complies with condition 13.5 it shall have no further liability for a breach of the warranty in condition 13.2 in respect of such Goods.
14. LIMITATION OF LIABILITY – THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CONDITION
14.1. Subject to conditions 5, 6 and 11 this condition 14 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents, consultants, and subcontractors) to the Customer in respect of:
14.1.1. any breach of the Contract or these conditions;
14.1.2. any use made or resale by the Customer of any of the Goods, or of any product incorporating any of the Goods; and
14.1.3. any representation, statement or tortuous act or omission (including negligence) arising under or in connection with the Contract.
14.2. All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
14.3. Nothing in these Conditions limits or excludes the liability of the Supplier:
14.3.1. for death or personal injury resulting from negligence; or
14.3.2. for any damage or liability incurred by the Customer as a result of fraud or fraudulent misrepresentation by the Supplier; or
14.3.3. under section 2(3), Consumer Protection Act 1987; or
14.3.4. for any matter which it would be illegal for the Supplier to exclude or attempt to exclude its liability.
14.4. Subject to condition 14.2 and condition 14.3
14.4.1. the Supplier’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with performance of or failure to perform the Contract shall be limited to the Contract price; and
14.4.2. the Company shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
15. EXPORT TERMS
15.1. Condition 15 applies to this Agreement (except to the extent that it is inconsistent with a written agreement between the Customer and Supplier) where the Supplier supplies the Goods over an international border or overseas.
15.2. The ‘Inco terms’ of the International Chamber of Commerce which are in force at the time when the Contract is made apply to exports but this Agreement prevails to the extent that there is any inconsistency.
15.3. Unless otherwise agreed, the Goods are supplied ex works place of manufacture for a maximum period of 14 days from the date of notification.
15.4. Where the Goods are to be sent by the Supplier to the Customer by a route including sea transport the Supplier is under no obligation to give notice under section 32 (3) of the Sale of Goods Act 1979.
15.5. The Customer is responsible for arranging, testing and inspecting the Goods at the Supplier’s premises before shipment (unless otherwise agreed). The Supplier is not liable for any defect in the Goods which be apparent on inspection unless a claim is made before shipment or for any damage during transit.
15.6. The Supplier is not liable for death or personal injury arising from the use of the Goods delivered in the territory of another State (within the meaning of section 26 (3) (b) Unfair Contract Terms Act 1977).
16.1. The Supplier may assign the Contract or any part of it to any person, firm or company.
16.2. The Customer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Supplier.
17. FORCE MAJEURE
18. The Supplier reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Customer (without liability to the Customer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Supplier including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of 90 days, the Customer shall be entitled to give notice in writing to the Supplier to terminate the Contract.
19.1. Each right or remedy of the Supplier under the Contract is without prejudice to any other right or remedy of the Supplier whether under the Contract or not.
19.2. If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
19.3. Failure or delay by the Supplier in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
19.4. Any waiver by the Supplier of any breach of, or any default under, any provision of the Contract by the Customer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
19.5. The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
19.6. This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law, and the parties submit to the exclusive jurisdiction of the English courts.
20.1. All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post or sent by fax:
20.1.1. (in case of communications to the Supplier) to its registered office or such changed address as shall be notified to the Customer by the Supplier; or
20.1.2. (in the case of the communications to the Customer) to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Customer set out in any document which forms part of the Contract or such other address as shall be notified to the Supplier by the Customer.
20.2. Communications shall be deemed to have been received:
20.2.1. if sent by pre-paid first class post, two days (excluding Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or
20.2.2. if delivered by hand, on the day of delivery; or
20.2.3. if sent by fax on a working day prior to 4.00 pm, at the time of transmission and otherwise on the next working day.
20.3. Communications addressed to the Supplier shall be marked for the attention of the managing director.