Terms and Conditions of Sale
In these Terms and Conditions of Sale:-
1.1 the “Company” means Forgefix Limited.
1.2 the “Purchaser” means the company, firm or individual who places an order to buy the Goods.
1.3 the “Conditions” means these Terms and Conditions of Sale.
1.4 the “Quotation” means the quotation addressed to the Purchaser by the Company.
1.5 the “Price” means the Company’s quoted price ruling as at the date of dispatch or (where no price has been quoted or where a quoted price is no longer valid) the price listed in the Company’s published list price for the Goods current as at the date of acceptance of the Purchaser’s order.
1.6 the “Contract” means the contract for the purchase and sale of the Goods and shall come into being when the Purchaser’s order is accepted by the Company or when the Company’s Quotation is accepted by the Purchaser.
1.7 the “Goods” means any items of whatsoever nature which the Purchaser buys or has agreed to buy from the Company on the Conditions.
1.8 the expression “liability” shall include, without prejudice to the generality of the expression, liability in tort, including negligence, and in contract, including liability for consequential loss (including loss of profit) or damage of any kind howsoever caused or arising.
2.1 Unless otherwise stated acceptance of the Quotation must be communicated by the Purchaser to the Company within 28 days from the date of the Quotation in order to form the basis of the Contract.
2.2 The placing by the Purchaser of an order (whether orally or by email or by fax or by letter) and whether or not based on a Quotation shall be deemed to be subject to the Conditions which shall apply to the exclusion of any other provisions contained in any other statement or document issued by the Purchaser and including in or forming part of any order placed by the Purchaser.
2.3 No modification or amendment to the Conditions shall be binding upon the Company unless agreed to in writing by a person duly authorized to do so on behalf of the Company.
2.4 Unless otherwise stated in writing all descriptions, specifications, drawings and particulars of weights and dimensions submitted by the Company or otherwise contained in the Company’s literature, catalogues, brochures, price lists or other published or electronic media are approximate only, and none of these shall form part of the Contract or give rise to any independent or collateral liability upon the part of the Company, being intended merely to present a general idea of the goods as described therein.
2.5 Unless specifically agreed in writing the Conditions are incorporated into each Contract for the purchase and sale of the Goods and any other conditions or terms are hereby excluded to the fullest extent permitted by law. Nothing in the Conditions shall create any rights for third parties under the Contracts (Rights of Third Parties) Act 1999.
3 TERMS OF PAYMENT
3.1 Payment of the Price of the Goods shall be made in cleared funds and without deduction or set-off on or before the 28th day of the month following the month of the Company’s invoice, and the time of payment of the Price shall be of the essence of the Contract.
3.2 Failure to pay the Price or any part thereof or any other monies due and payable by the Purchaser hereunder shall entitle the Company in its sole discretion and without prejudice to any other right or remedy to refuse to make delivery of any future consignment of Goods under the Contract or to cancel any uncompleted order without incurring any liability whatsoever to the Purchaser for any delay.
3.3 Payment made by cheque shall not be deemed to have been made until the Company’s bank account shall have been credited with cleared funds in respect thereof.
3.4 If any invoice shall be overdue for payment, the Company shall reserve the right to withdraw any or all discounts reflected in the Quotation or in the Price so that the full list price for the Goods shall become payable by the Purchaser.
3.5 If any invoice shall be overdue for payment, the Company may claim statutory interest at the rate of 8% per annum above the Bank of England base rate in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 from the due date up to and including the date of payment of all sums due to the Company and for each and any Contract subject to the Conditions.
3.6 If the Company elects to enforce its rights under this Clause 3 and if there shall be any dispute as to whether any particular Goods have been paid for or not, the Company shall not be required to prove that any of the Goods sold or unsold is directly attributable to a particular unpaid invoice but merely to establish that, on the basis that the Goods shall have been sold or used up in the order in which they were delivered to the Purchaser, any Goods in evidence of the type which is not paid for may be reasonably said to be those Goods which are not paid for and which therefore remain the property of the Company.
3.7 If the Purchaser shall have sold the Goods by way of trade or otherwise the Company reserves the right to garnish, sequester or by other means create and hold security over any funds payable by the Purchaser’s buyer to the Purchaser in respect of the Goods, and the Purchaser shall give the Company full access to any books or records including electronic records which may help to identify such payments as relate to the Goods.
4.1 The Purchaser shall not be entitled to make any deduction from the Price of the Goods in respect of any set-off or counter claim unless both the validity and the amount thereof have been expressly admitted by the Company in writing.
4.2 Unless otherwise stated, any Quotation is based upon the current cost of materials, labour, transport, overheads and other charges, and in the Company’s discretion the Price may be subject to fair adjustment reflecting any alteration in the costs of materials, labour, transport, overheads or other charges during the period between the date of the Quotation of the Price and the date of dispatch.
5 TRANSFER OF PROPERTY
5.1 Notwithstanding the passing of risk in accordance with Clause 9 herein, legal title to the Goods shall remain with the Company and shall not pass to the Purchaser until the Company has received payment in full of the Price of the Goods and of any other goods supplied by the Company for which payment is then due.
5.2 Until title in the Goods passes to the Purchaser, the Purchaser shall hold the Goods as the Company’s fiduciary agent and bailee and shall keep the Goods separate from any other goods of the Purchaser and of third parties and properly stored, protected, insured and identified as the
Company’s property, but the Purchaser (acting as agent for the Company) shall be entitled to resell or use the Goods in the ordinary course of its business and shall hold the proceeds of sale, including insurance proceeds following loss or damage to the Goods, upon trust for the Company.
5.3 Until title in the Goods passes to the Purchaser, the Company shall be entitled at any time to require the Purchaser to deliver up the Goods to the Company, and if the Purchaser fails to do so, to enter upon any premises of the Purchaser or of any third party where the Goods are stored and repossess the Goods.
5.4 The Purchaser shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company, but if the Purchaser does so, all monies owing by the Purchaser to the Company (without prejudice to any other right of the Company) shall whether or not then due immediately become due and payable.
5.5 The Company may maintain an action for the Goods notwithstanding that the ownership in them has not passed to the Purchaser.
Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Purchaser hereby affirms that it does not in any way rely on any description when entering into the Contract.
Where a sample of the Goods is shown to and inspected by the Purchaser, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Purchaser to judge for itself the quality of the bulk, and not so as to constitute a sale by sample.
8.1 Unless otherwise agreed in writing, delivery of the Goods shall take place at the address specified by the Purchaser on the date specified by the Company. The Purchaser shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
8.2 Unless the Purchaser shall have specified and the Company shall have agreed a specific date and time for delivery (for each or either of which an additional charge may be made by the Company), any date and time specified by the Company shall be an estimate only, and neither the date nor the time of delivery shall be of the essence of the Contract.
8.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate Contract, and any failure by the Company to deliver any one or more of the instalments shall not entitle the Purchaser to repudiate the Contract as a whole.
8.4 If the Company is unable to deliver the Goods because and for whatever reason the Purchaser is unable to accept them, the Company shall be entitled to place the Goods in storage until such time as delivery may be effected, and the Purchaser shall be liable for any expense associated with such storage.
8.5 If the Goods or any of them have been damaged or lost in transit or in the event of shortage upon delivery to the Purchaser’s premises, the Purchaser shall within 3 working days of delivery notify the Company in writing of the damage or loss or shortage as appropriate and request replacement of the Goods. The Company’s liability for damage or loss in transit or of shortage upon delivery shall in any event be limited solely to replacement of the Goods or to the value by way of credit note of the Company’s selling price of the Goods (but excluding VAT and delivery) determined as so affected.
Risk of loss or destruction of or damage to the Goods shall pass to the Purchaser at the moment at which the Goods are tendered for delivery at the Purchaser’s premises or at the address of a third party nominated by the Purchaser. Where the Purchaser chooses to collect the Goods itself, risk will pass when the Goods are entrusted to it or set aside for its collection, whichever shall occur first.
10.1 Where the Goods have been manufactured by the Company and are found to be defective, the Company shall accept for repair or in its sole discretion replace defective Goods free of charge within 10 working days of such finding, subject to the following conditions:
10.1.1 the Purchaser shall notify the Company in writing immediately upon the defect becoming apparent, and
10.1.2 the Company shall in its sole discretion accept the defect as being due to the faulty design, materials or workmanship of the Company, and
10.1.3 the Purchaser shall not execute or attempt to execute any repair or alteration to the Goods unless authorized in writing by the Company to do so, and
10.1.4 the Company shall not recognize any debit note or similar raised by the Purchaser in respect of Goods so returned.
10.2 Any Goods to be repaired or replaced shall, if so requested by the Company, be returned to the Company at the Purchaser’s expense.
10.3 Where the Goods have been manufactured and supplied to the Company by a third party, any warranty granted to the Company in respect of the Goods shall where possible be transferred to the Purchaser.
10.4 The Company shall be entitled in its sole discretion to refund the Price of the defective Goods in the event that such Price has already been paid by the Purchaser.
10.5 The remedies contained in this Clause 10 are without prejudice to the other Conditions herein including, but without limitation, to Clauses 12 and 13 herein.
11.1 No liability of any nature shall be incurred or accepted by the Company in respect of any representation made by the Company, or on its behalf, to the Purchaser or to any party acting on its behalf, prior to the making of the Contract where such representation was made or given in relation to:
11.1.1 the correspondence of the Goods with any description; or
11.1.2 the satisfactory quality of the Goods; or
11.1.3 the fitness of the Goods for any purpose whatsoever.
11.2 No liability of any nature shall be incurred or accepted by the Company to the Purchaser in respect of any express term of the Contract where such term relates in any way to:
11.2.1 the correspondence of the Goods with any description; or
11.2.2 the satisfactory quality of the Goods; or
11.2.3 the fitness of the Goods for any purpose whatsoever.
11.3 All implied terms, conditions or warranties as to the correspondence of the Goods with any description or as to the satisfactory quality of the Goods or as to the fitness of the Goods for any purpose whatsoever (whether made known to the Company or not) are hereby excluded from the Contract.
11.4 Should a Director, Principal or Proprietor of the Purchaser that is insolvent knowing of such insolvency place or continue to place orders for Goods he shall be held responsible personally for any debts thereby incurred irrespective of whether or not wrongful or fraudulent trading can be proved, and irrespective of any creditors’ voluntary arrangement, insolvency proceedings, liquidation or dissolution.
12 LIMITATION OF LIABILITY
12.1 In relation but not exclusively to Clause 10 above, the liability of the Company is strictly limited, and no liability of any nature shall be accepted by the Company in respect of any claim by the Purchaser for consequential or other loss, cost, damage or expense, whether arising or alleged to arise under any warranty, statement, condition or term, express or implied.
12.2 Where any court of competent jurisdiction or arbitrator duly appointed determines that any part of Clause 11 above is for whatever reason unenforceable, the Company may be held liable for loss or damage suffered by the Purchaser but not in any amount that exceeds the Price.
12.3 Nothing contained in the Conditions shall be construed so as to limit or exclude the liability of the Company for death or personal injury that results from of the Company’s negligence or that of its employees or agents.
13 INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights produced from or arising out of the performance of the Contract shall, so far as not already vested, become the absolute property of the Company, and the Purchaser shall do all that is reasonably necessary to ensure that such rights vest in the Company by the execution of appropriate instruments or the making of agreements with third parties, as required.
If the Purchaser (being a company) has a petition presented for its winding-up or the appointment of any administrator or passes a resolution for voluntary winding-up otherwise than for the purpose of a bona fide amalgamation or reconstruction or enters into a scheme of arrangement or voluntary arrangement or compounds or makes any proposal to or enters into any arrangement with its creditors or makes or has made an application for a moratorium in connection with a proposal to its creditors or has a receiver or manager or administrative receiver appointed over all or any part of its assets or (being an individual) has a petition presented for his bankruptcy or becomes bankrupt or insolvent or enters into any arrangement with his creditors or makes or has made an application for an interim order in connection with a proposal to creditors for a voluntary arrangement, the Company may without notice terminate the Contract without liability and all monies payable by the Purchaser to the Company whether or not then due shall be due and payable within 10 working days of such termination.
15 FORCE MAJEURE
The Company shall not be liable for any delay or failure to perform any of its obligations hereunder if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, civil unrest, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and in any such circumstances the Company shall be entitled to a reasonable extension of its obligations hereunder. If the delay persists for such length of time as the Company considers unreasonable, it may, without liability on its part, terminate the contract.
16 RELATIONSHIP OF PARTIES
Nothing contained in the Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in the Conditions shall be deemed to construe either of the parties as the agent of the other.
17 ASSIGNMENT AND SUB-CONTRACTING
The Contract between the Company and the Purchaser for the sale and purchase of the Goods shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Purchaser, without the prior written consent of the Company.
The failure by either party to enforce at any time or for any period any one or more of the Conditions shall not be a waiver of any or all of them or of the right at any time subsequently to enforce any or all of them.
If any term or provision of the Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such term or provision shall be severed and shall not affect the validity, legality or enforceability of the remaining terms or provisions.
20 ADDRESS FOR SERVICE
Any notice required to be given by either party to the other under the Conditions shall be addressed in writing to the other party at its registered office or principal place of business.
21 GOVERNING LAW AND JURISDICTION
The Conditions and the Contract subject to them shall be interpreted in accordance with the laws of England and the parties shall submit to the non-exclusive jurisdiction of the English courts.