1.1 In these Conditions
“BUYER” means the person who accepts a quotation of the seller for the sale of the Goods is accepted by the seller
“GOODS” means the goods (including any instalment of the goods or any parts for them) which the seller is to supply in accordance with these conditions
“SELLER” means EXCELL METAL SPINNING LIMITED (registered in England with limited liability under company number 04129971) whose registered office is UNIT 9, BRAMBLES ENTERPRISE CENTRE PORTSMOUTH PO7 7TH
“CONDITIONS” means the standard terms and conditions of sale set out in this document and includes any special terms and conditions agreed in writing between the buyer and the seller
“CONTRACT” means the contract for the purchase and sale of the Goods
“WRITING” includes email, facsimile transmission and comparable means of communication
1.2 Any reference in these conditions to any provision of a statute shall be constructed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of Sale
2.1 The seller shall sell and the Buyer shall purchase the Goods in accordance with any order of the Buyer which is accepted by the Seller in accordance with clause 3.1 which shall in any event be subject to these conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such order is made or purported to be made by the Buyer.
2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
2.3 The Seller’s employees or agent are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.
2.4 Any advise or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 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.
2.6 A quotation by the Seller does not constitute an offer and the Seller reserves the right to withdraw or revise a quotation at any time prior to the Seller’s acceptance of the Buyer’s order.
3. Orders and Specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller’s authorised representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 Subject to clause 3.7 below, the quantity, quality and description of any specification for the Goods shall be those set out in the Buyer’s order (if accepted in Writing by the Seller in accordance with clause 3.1).
3.4 If the Good’s are to be manufactured, designed, built or configured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the buyer, the Buyer shall hold the Seller harmless and shall fully and promptly 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 infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
3.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EU requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.6 No Order which has been accepted by the Seller may be cancelled by the Buyer except by the Buyer with agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all lost (including loss of profit), cost, (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
3.7 The Seller reserves the right to supply Goods which may vary in dimension by up to 10% from the amount stated in the Contract. Where the Seller under delivers Goods by an amount not exceeding 10% by dimension the provisions of sub-section (1) of Section 30 of the Sale of Goods Act 1979 shall not apply and the delivery of such lesser amount of Goods shall be deemed to be delivery under the Contract and shall be paid for by the Buyer at a rate set out in the Contract. Where the Seller delivers goods by an amount no greater than 10% by dimension of the amount set out in the Contract the provisions of sub-sections (2) and (3) of Section 30 of the Sale and Goods Act 1979 shall not apply and the delivery of such greater amount shall be deemed to be delivery under the Contract and paid for by the Buyer at the rate set out in the Contract. In the event that the Seller delivering an amount greater than 10% by dimension in excess of the quantity set out in the Contract, the Buyer shall have the option of paying for such excess at the rate set out in the Contract or at its option, returning such additional Goods to the Seller (in the same condition as delivered to the Buyer). Provided Always that such Goods must be returned no later than 14 days from the date of delivery.
4. Price of the Goods
4.1 The price of the Goods shall be the Seller’s quoted price subject always to the provisions of clause 2.6. All priced quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitations, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase to costs of labour, materials, or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instruction.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on a manufacturing basis and where the Seller agrees to deliver the Goods otherwise that at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable value added tax which the Buyer shall be additionally liable to pay the Seller.
5. Terms of Payment
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2 The Buyer shall pay the price of the Goods within 30days after the end of the month (if a credit account has been agreed between both parties and the Buyer has not reached their credit limit. If this is not the case please see section 6.1) in which the Goods are delivered and the Seller shall be entitled to recover the price, notwithstanding that the property of the Goods has been passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.3.1 Cancel the contract or suspend any further deliveries to the Buyer.
5.3.2 Appropriate any payment made by the buyer of such of the Goods (or the Goods supplied under any other Contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.3.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 4 per cent per annum above National Westminster Bank’s base lending rate from the time calculated on a daily basis, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest). The Seller reserves the right to claim interest under the Late Payment of Commercial Debts (interest) Act 1998.
6. Proforma Payments
6.1 In the case that the Buyer has not had within Writing from the Seller the Buyer will be subject to Proforma Payments being paid before the Goods are to be manufactured.
6.2 The Seller reserves the right to cancel the Buyer’s Credit Account within Writing if the Seller deems the Buyer to have been consistently late with payments or if the Buyer’s Credit Account is over the agreed credit limit.
6.3 The Buyer will stay on a Proforma invoice basis until approval is agreed in Writing from the Seller.
7. Delivery, Inspection and Complaints
7.1 Any dates quoted for delivery of the Goods are approximate only and subject to 7.2 below, the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer,
7.2 If the Seller fails to deliver the Goods (or any instalment) for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault and the Seller is accordingly liable to the Buyer, the Seller’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. Provided always that the time of delivery of the Goods shall not be of the essence of this Contract and no delay by the Seller in the delivery of the Goods (or any instalments) which does not exceed (6 months) shall give the Buyer right to terminate this Contract or purchase similar goods elsewhere.
7.3 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then risk in the Goods shall pass to the Buyer and the Goods shall be deemed to have been delivered and without prejudice to any other right or remedy available to the Seller, the Seller may:
7.3.1 Store the Goods until actual delivery and charge the Buyer for the reasonable cost (including insurance) of storage.
7.4 The Buyer shall examine the Goods upon delivery and satisfy itself that they conform to Contract. A claim that Goods are not in accordance with the Contract will not be accepted by the Seller unless notice in writing specifying the alleged default is given to the Seller within 7 days of delivery of the Goods.
7.5 Failure to notify the Seller of the non-delivery of the Goods, or any of them, within 7 days of the due date for delivery will release the Seller from liability for claims for non-delivery.
7.6 Any Goods considered to be damaged or defective (together with there packaging materials) shall be retained by the Buyer intact as delivered for a period of twenty one days from the notification of the claim to the Seller, within which time the Seller or it’s agent shall have the right to investigate the complaint and examine the Goods and, if possible, to remedy any defect. Any breach of this condition will release the Seller from any liability for the Goods which are alleged not to conform to Contract.
7.7 If the Seller agrees with the Buyer that the Goods are damaged or defective and that it is not possible to remedy any defect then the Seller shall, at its sole option, replace the Goods or credit the Buyer accordingly.
7.8 The Seller shall have no liability to the Buyer in respect of damaged or defective Goods (and the Buyer shall be required to pay the full contract price) where:-
(a) Any claim made by the Buyer is not in accordance with these conditions;
(b) Damage has been sustained after delivery of the Goods to the Buyer, or its agent.
(c) Defects are not returned to the Seller for inspection and a remedy has been applied with out the Sellers knowledge.
(d) A receipt has been obtained by the Seller, duly signed by the Buyer or one of its employees or agents, confirming that the Goods have been delivered in a satisfactory condition.
8. Insolvency of Buyer
8.1 This clause applies if;
8.1.1 The Buyer makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
8.1.2 An encumbrancer takes possession, or a receiver, or administrative receiver is appointed, of any of the property or assets of the Buyer; or
8.1.3 The Buyer ceases, or threatens to cease, to carry on business; or
8.1.4 The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
8.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
8.3 If the Goods have been delivered but not paid for the Goods will remain the property of the Seller until paid for in full.
9.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party at its registered office or principle place of business or such other addresses as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
9.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of he same or any provision.
9.3 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 provisions in question shall not be affected.
9.4 Neither the Seller nor the Buyer intends 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.
9.5 The Contract shall be governed by the laws of England and the Seller and the Buyer submit to the exclusive jurisdiction of the English courts. In the event of any dispute or difference between the parties which cannot be resolved through negotiation, the parties shall attempt to resolve the same in accordance with the Guidelines for Conciliation and Mediation or the Guidelines for supervised Settlement Procedure (“Mini Trial”) of the Chartered Institute of Arbitrators. If such dispute or difference is not resolved by one of these procedures within 28 days of the partiers entering into it, or if either party refuses to participate in it, the same shall be referred to a single arbitrator to be agreed upon by the parties pursuant to section 16(3) of the Arbitration Act 1996 (“the act”) or in default of agreement to be appointed by the President or Vice President for the time being of the Chartered Institute of Arbitrators. In this clause 9.4 “dispute or difference” does not include a claim for the price of the Goods by the Seller from the Buyer. The Arbitration shall be regarded as commenced for the purpose set out in Section 14(1) of the Act when one party sends to the other a notice to concur in the appointment of the Arbitrator. The seat of the arbitration shall be in London. The Arbitrator shall determine the dispute or difference in accordance with the Law of the Contract.