TERMS & CONDITIONS
GENERAL CONDITIONS OF SALE
‘Buyer’ means the person or Company from whom the Order is received;
‘Company’ means the Company whose name and address appears at the head of the sales order acknowledgement or invoice;
‘Conditions’ means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Company;
‘Goods’ means the articles or things or items described in the Order;
‘Price’ Means the Price for the Goods specified by the Company in acceptance of the Order;
‘Order’ means the Order placed by the Buyer for the supply of the Goods and/or provision of the Services.
2 CONDITIONS APPLICABLE
2.1 The Company’s quotations are not binding on the Company and a contract (‘the Contract’) will only come into being upon acceptance by the Company of the Order.
2.2 The Contract will be subject to the Conditions which shall apply to all contracts for the sale of Goods by the Company to the Buyer to the exclusion of all other terms and Conditions including any terms and Conditions which the Buyer may purport to apply under any purchase Order, confirmation of Order or similar document. All Orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.
2.3 Any variation to these Conditions (including any special terms and Conditions agreed between the parties) shall be inapplicable unless agreed in writing by a director of the Company and in particular (but without limitation):-
2.3.1 where the Buyer requires the Goods for a particular purpose the Company shall be deemed to have no notice of such purpose unless that purpose is agreed by the Buyer and Company in writing and signed on their behalf as above;
2.4 The Buyer shall:-
2.4.1 not engage in any activity, practice or conduct which would constitute either;
184.108.40.206 a UK tax evasion facilitation offence under Section 45(5) of the Criminal Finances Act 2017;
220.127.116.11 a foreign tax evasion facilitation offence under Section 46(6) of the Criminal Finances Act 2017;
2.4.2 have in place such policies and procedures as are reasonable to prevent the facilitation of tax evasion by its employees or another person and to ensure compliance with 2.4.1 above.
2.4.3 promptly report to the Company any request or demand from a third party to facilitate the evasion of tax within the meaning of Part 3 of the Criminal Finances Act 2017.
3 LIMITATION OF LIABILITY
3.1 Except where the Buyer is dealing as a consumer (as defined in the Unfair Contract Terms Act 1977 Section 12) all warranties, Conditions or terms of every kind whether implied by statute or common law or otherwise are hereby excluded to the fullest extent permitted by law.
3.2 The Company shall not be liable for consequential loss or damage whatsoever whether caused by negligence or otherwise arising out of or in connection with the provision of any Goods pursuant to this Contract (except in respect of death or personal injury caused by the Company’s negligence) and the total liability of the Company for any other loss of the Buyer in connection with this Contract shall not exceed the Price.
3.3 Where this Contract is for the sale of Goods by the Company to the Buyer examination of the Goods will be made by or on behalf of the Buyer prior to the Contract being made and no description or representation on the part of the Company is given or implied by the Contract nor on a sale of Goods or provision of Services is any warranty, Condition, description or representation on the part of the Company given or implied from anything said or written in the negotiations between the parties or their representatives prior to this agreement. The description of the Goods given on the Order or elsewhere is by way of identification only and such description shall not constitute a sale by description.
3.4 Notwithstanding that on a sale of Goods a sample of the Goods may have been exhibited and inspected by the Buyer it is hereby declared that such sample was so exhibited and inspected solely to enable the Buyer to judge the quality of the bulk and not so as to constitute a sale by sample under the Contract. The Buyer shall take the Goods at its own risk as to their corresponding with the said sample or as to their quality, Condition or sufficiency for any purpose.
3.5 No forbearance or indulgence by the Company shown or granted to a Buyer, whether in respect of the Conditions or otherwise shall in any way affect or prejudice the rights of the Company against the Buyer or be taken as a waiver of the Conditions.
4.1 The Buyer shall inspect the Goods supplied under this Contract immediately on the delivery thereof and shall in the case of any allegation of disconformity of the Goods with the type or quality of the metal specified in the Order within 14 days and in any other case within three days from such delivery give notice in writing to the Company of any matter or thing by reason whereof it alleges that the Goods are not in accordance with the Contract and/or whether it rejects them.
4.2 If the Buyer fails to give notice that it rejects the Goods as provided in clause 4.1 the Buyer shall be deemed to have accepted the Goods and the Goods shall be deemed to be in all respects in accordance with the Contract.
4.3 If the Buyer gives notice that it rejects the Goods and such rejection afterwards becomes ineffectual by reason of the Buyer dealing with the Goods as owner or by reason of any other conduct on the part of the Buyer inconsistent with such rejection the Buyer shall be bound to pay the purchase Price therefore in full and shall have no claim for damages or compensation by reason of any disconformity of the Goods with the Contract.
4.4 If the Buyer rejects the Goods under clause 4.1 hereof the Company may elect to supply other Goods complying with the specification contained in the Order to the Company within 14 days of the date of the notice of rejection and if those Goods are not properly rejected by the Buyer the Company shall be deemed to have complied with its obligations under the Contract and no claim by the Buyer arising out of the Buyer’s rejection of the original Goods shall lie against the Company.
5 RETENTION OF TITLE
5.1 Notwithstanding clause 8 legal and beneficial ownership of Goods sold under this Contract shall remain with the Company until payment in full has been received by the Company:-
5.1.1 for those Goods;
5.1.2 for any other Goods supplied by the Company;
5.1.3 Of any other monies due from the Buyer to the Company on any account.
5.2 Until legal and beneficial ownership of the Goods passes to the Buyer in accordance with clause 5.1 the Buyer shall:-
5.2.1 hold the Goods and each of them on a fiduciary basis as bailee for the Company; and
5.2.2 store the Goods (at no cost to the Company) separately from all other Goods in its possession and readily identifiable as the Company’s property.
5.3.1 Notwithstanding clause 5.1 the Buyer may (as between it and its customer only) as principal in the ordinary course of its business sell the Goods by bona fide sale at full market value or in the ordinary course of its business use the Goods.
5.3.2 Goods shall be deemed sold or used in the Order delivered to the Buyer.
5.3.3 Any resale by the Buyer of Goods in which the legal and beneficial ownership has not passed to the Buyer shall (as between the Company and the Buyer) be made by the Buyer as agent for the Company.
5.4.1 If the Goods in which the legal and beneficial ownership has not passed to the Buyer are mixed with or incorporated into other Goods the property in those other Goods or the proceeds of sale thereof shall be held on trust by the Buyer for the Company to the full extent of the sums recoverable by the Company under clause 5.1.
5.4.2 The proceeds of sale of any Goods and any other Goods referred to in clause 5.4.1 shall be held by the Buyer in trust for the Company to the extent of all sums recoverable by the Company under clause 5.1.
5.4.3 The Buyer shall keep any proceeds of sale as referred to in clause 5.4.2 in a separate account and the Company shall have the right to trace such proceeds (according to the principles in re Halletts Estate (1880) 13 ch D 696).
5.4.4 Upon accounting to the Company for the entire proceeds of sales made under clauses 5.3.3 and 5.4.1 above the Company will pay to the Buyer a commission equivalent to the difference between the sums owed to the Company and the value of such proceeds.
5.5 The Buyer assigns to the Company all rights and claims the Buyer may have against its own customers and others in respect of Goods specified in clauses 5.3.3 and 5.4.1.
5.6 At any time prior to legal and beneficial ownership in Goods passing to the Buyer (whether or not any payment to the Company is then overdue or the Buyer is otherwise in breach of any obligation to the Company) the Company may (without prejudice to any other of its rights):-
5.6.1 retake possession of all or any part of the Goods and enter any premises for that purpose (or authorise others to do so) which the Buyer hereby authorises;
5.6.2 require delivery up to it of all or any part of the Goods;
5.6.3 terminate the Buyers authority to resell or use the Goods forthwith by written notice to the Buyer which authority shall automatically terminate (without notice) upon any insolvency of the Buyer or it going into liquidation (as defined in the Insolvency Act 1986) or it having a receiver or similar appointed or calling a meeting of its creditors or any execution or distress being levied on Goods in its possession.
5.7 The Company may at any time appropriate sums received from the Buyer as it thinks fit notwithstanding any purported appropriation by the Buyer.
5.8 Each clause and sub-clause of this clause is separate, severable and distinct.
6.1 Except where there is in existence at the date of the Order a written arrangement by both parties signed on their behalf in the case of the Company by a director of the Company confirming credit terms or otherwise varying terms as to payment upon the Buyer payment of the Price of the Goods shall be made in cash within 30 days of delivery of the Goods or within 30 days of the date on which the Company has notified the Buyer that the Goods are ready for delivery and the time mentioned within which the Buyer is to pay the Price shall be of the essence of this Contract.
6.2 If the Price of the Goods is not paid on the date upon which it became due whether by virtue of clause 6.1 hereof or by virtue of any agreement varying the time during which payment of the Price is to be made the following consequences shall ensue:-
6.2.1 compound interest shall be payable by the Buyer as well after as before any judgment which may be obtained by the Company in respect thereof on:-
18.104.22.168 the Price of the Goods; and
22.214.171.124 on any other sums which by virtue of clause 6.2.2 and/or 7.6 shall thereupon become due from the Buyer to the Company such interest shall be calculated from the date upon which payment of the Price become due with half yearly rests at the rate of 3% above the base rate for lending of Barclays Bank plc from time to time applicable; and
6.2.2 any credit arrangements subsisting between the Buyer and the Company whether in respect of the Goods which are the subject of this Contract or otherwise shall terminate and all and any sums due from the Buyer to the Company on any account whatsoever shall become due and payable forthwith.
6.3 The Company reserves the right to vary the Price of the Goods at any time by notice in writing given by the Company to the Buyer PROVIDED that if any such variation shall increase the Price of the Goods by more than 10% the Buyer shall have the option within 14 days of the giving of the said notice in writing to the Company either to proceed with the Order at the Price so varied or to cancel such part of the Order as may be affected by the said variation.
6.4 Without prejudice to any of the other rights of the Company if the Company is unable to obtain and maintain an insured credit limit on the Buyer then all credit facilities and arrangements will terminate immediately or at the discretion of the Company be reduced to the limit of credit imposed by the Company’s credit insurers upon the Company giving the Buyer notice in writing.
7.1 Subject to clause 7.2 the Goods shall be delivered by the Company at or dispatched for delivery to the place or places and in the manner specified in the Order or as subsequently agreed.
7.2 The performance of all Contracts is subject to variation or cancellation by the Company owing to any act of God, war, strikes, protests, Governmental regulations or Orders, national emergencies, lock-outs, fire, flood, drought, epidemic, tempest or any other cause (whether or not of a like nature) beyond the control of the Company or owing to any inability to deliver caused by any such contingency or for any loss consequent thereon.
7.3 Any delay caused by production problems including plant breakdown, any damage to plant howsoever caused or unavailability of feedstocks which are reasonably beyond the control of the Company will not give rise to any claim of actual or consequential loss against the Company.
7.4 Unless otherwise specified in the Order the Company shall be deemed to have made a due delivery of the Goods if the Goods are collected by or on behalf of the Buyer or delivered to or collected by a carrier nominated by the Buyer and such delivery shall be deemed to have taken place at the moment when the Goods are received into the possession of the Buyer, his servant, agent, representative or such carrier.
7.5 Any claim for damage or partial loss of the Goods in transit must be submitted in writing to both the carrier and the Company within three days of delivery in the case of non-delivery of the whole consignment claims must be submitted in writing to both the carrier and the Company within seven days of receipt of the Buyer (or the Buyer’s agent) of notification of dispatch of the Goods. In the absence of claims within the terms mentioned above the Goods shall be deemed to have been delivered in accordance with the Contract.
7.6 If for any reason the Buyer is unable to accept delivery of the Goods at the time stated for delivery the Company shall at its discretion and without prejudice to its rights hereunder if its storage facilities permit, store the Goods until their actual delivery and the Buyer shall pay to the Company on the actual delivery of the said Goods in addition to any sum due under clause 6 hereof such sum as represents the costs (including insurance) and the cost of any abortive deliveries of its so doing.
7.7 No delay in delivery shall entitle the Buyer to repudiate or cancel the contract or any deliveries thereunder.
Notwithstanding any of these Conditions of sale, the risk of any loss or damage to or deterioration of the Goods from whatever cause arising shall pass to the Buyer on delivery of the Goods and the Buyer shall be liable to insure the same and pay all sums due under the contract whether or not the Goods are lost destroyed damaged or stolen.
9.1 This clause applies if:-
9.1.1 the Buyer makes 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 (otherwise than for the purposes of amalgamation or reconstruction); or
9.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
9.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
9.1.4 the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly; or
9.1.5 there is a breach of clause 2.4.
9.2 If If this clause applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to determine the Contract or suspend any further deliveries under the Contract without any liability to the Company, 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.
10.1 When the Goods are made or adapted in accordance with the Buyer’s specifications the Buyer shall indemnify the Company against all costs, claims and expenses incurred by the Company in respect of the infringement or alleged infringement by such Goods of any patents, registered designs, trade marks or other rights belonging to third parties.
10.2 The Buyer agrees upon demand to indemnify the Company against all losses, damage, injury, costs and expenses of whatever nature suffered by the Company to the extent that the same are caused by or related to:-
10.2.1 designs, drawings or specifications given to the Company by the Buyer in respect of Goods produced by the Company for the Buyer; or
10.2.2 defective materials or products supplied by the Buyer to the Company and incorporated by the Company in Goods produced by the Company for the Buyer; or
10.2.3 the improper incorporation, assembly, use, processing, storage or handling of Goods by the Buyer.
11.1 All headings are for ease of reference only and shall not affect the construction of this Contract.
11.2 Any provision of this Contract which is or may be void or unenforceable shall to the extent of such invalidity or unenforceability be deemed severable and shall not affect any other provision of this Contract.
11.3 No waiver or forbearance by the Company (whether express or implied) in enforcing any of its rights under this Contract shall prejudice its rights to do so in the future.
11.4 The Company may license or sub-contract all or any part of its rights and obligations under this Contract without the Buyer’s consent.
12 JURISDICTION AND ARBITRATION
The contract shall be governed by and construed in accordance with the laws of England and any difference or dispute arising between the Company and the Buyer shall be subject to the sole and exclusive jurisdiction of the English Courts.
The ‘Buyer’ – the Company who issues this purchase Order and whose name is printed at the head of the Order form.
Acceptance of the Buyer’s Order shall be deemed to include acceptance of these Conditions, and the delivery of any Goods under the Order shall be deemed to be a waiver of any Condition or acceptance inconsistent therewith or repugnant thereto contained in any acceptance or acknowledgement of the Order.
The Buyer shall not be responsible for Goods delivered to it unless authorised by a written purchase Order.
No increase in the Price stated in the Buyer’s Order shall be recoverable by the Seller unless agreed in advance by the Buyer in writing.
(i) The Goods, properly packed and secured in such a manner as to reach their destination in Good Condition shall be delivered by the Seller at, or dispatched for delivery to, the place or places and in the manner specified in the Order or as subsequently agreed by the Buyer.
(ii) The Seller shall deliver the Goods at the time specified in the Order and time shall begin to run from the date of acceptance by the Seller of the Order. Time shall be of the essence of the contract.
(iii) If the Goods or any portion thereof are not delivered within the time or times specified in the Order, the Buyer shall be entitled to cancel the Order in respect of the Goods undelivered as aforesaid. On such cancellation the Buyer shall be entitled
a) to return to the Seller at the Seller’s risk and expense any of the Goods already delivered but which cannot be effectively and commercially used by the Buyer and to recover from the Seller any monies paid by the Buyer in respect of such Goods; and
b) to recover from the Seller any additional expenditure reasonably incurred by the Buyer in obtaining other Goods in replacement of those in respect of which the Order has been cancelled.
5 DAMAGE OR LOSS IN TRANSIT
The Seller shall repair or replace, free of charge, Goods damaged or lost in transit provided the Buyer gives the Seller written notification of such damage or loss within such time as will enable the Seller to comply with the carrier’s Conditions of carriage as affecting loss or damage in transit, or where delivery is made by the Seller’s own transport within a reasonable time. The Buyer reserves the right to hold such damaged Goods at the Seller’s risk or to return them at the risk and expense of the Seller.
6 QUALITY AND MARKING OF GOODS
(i) The Goods shall
(a) conform as to quantity, quality and description with the particulars stated in the Order
(b) be of sound materials and workmanship
(c) be equal in all respects to the samples or specifications provided or given by either party, and
(d) if the purpose for which they are required is indicated in the Order, either expressly or by implication be fit for that purpose.
(ii) The Seller shall mark the Goods, the subject of the Order, in accordance with any reasonable instructions of the Buyer
(i) The Buyer may by notice in writing to the Seller given within a reasonable period after delivery reject any Goods which are found not to be in accordance with the Order.
(ii) Upon the giving of such notice of rejection, the Buyer shall return the rejected Goods to the Seller at the Seller’s risk and expense in such case the Seller shall, if so required by the Buyer, within a reasonable time replace such rejected Goods with Goods which are in all respects in accordance with the Order.
(iii) Any money paid by the Buyer to the Seller in respect of any rejected Goods not replaced by the Seller, together with any additional expenditure over and above the Price specified in the Order reasonably incurred by the Buyer in obtaining other Goods in replacement, shall be paid by the Seller to the Buyer.
(iv) The expense referred to in sub-paragraph (ii) above shall include the cost of freight, shipping, unpacking, examining, re-packing, storing, reshipping and similar expenses.
8 PASSING OF PROPERTY
(i) The property in any Goods under the Order shall pass to the Buyer on delivery without prejudice to any right or rejection which may accrue to the Buyer under these Conditions.
(ii) All Goods will be subject to the inspection and approval of the Buyer within a reasonable time after delivery. The acceptance of any portion of the Goods delivered (particularly in the case of multiple deliveries) shall not be deemed a waiver of the Buyer’s right to cancel or return the remainder of the Goods under the Order because the Goods do not comply with the terms of the Order or due to any other default of the Seller. The Seller agrees to pay and reimburse the Buyer for invoice and delivery costs and other expenses incurred in unpacking, examining and repacking the said Goods for return.
9 CONFLICT MINERALS
The Seller shall use due diligence to comply with Conflict Minerals legal requirements. Conflict Minerals include Gold (Au), Tantalum (Ta), Tungsten and Tin (Sn) sourced from areas identified as conflict regions, including the Democratic Republic of the Congo (DRC) and Central Africa. The Seller represents and warrants that no Conflict Minerals that originated in the DRC or an adjoining country are present in any Goods supplied by the Seller. For the purposes of making such representation and warranty, the Seller will use due diligence protocols, standards, and procedures that meet or exceed the reasonable country of origin inquiry described in the US SEC rules and the relevant best practices developed by industry. The Seller shall indemnify, defend, and hold harmless the Buyer (including its shareholders, directors, officers, employees, customers, contractors, agents and other representatives) from and against any and all potential demands, claims, actions, causes of action, proceedings, suits, assessments, losses, damages, liabilities, settlements, judgments, fines, penalties, interest, costs and expenses (including fees and disbursements of counsel) of every kind which arise out of any Goods’ actual or alleged Conflict Minerals content or the Seller’s non- compliance with this clause. The Seller shall further assist the Buyer with any requests for information, certifications, or other similar documents as the Buyer may reasonably request to ensure the Goods’ and the Seller’s compliance with this clause and shall notify the Buyer promptly upon discovering or having reason to believe that any Goods fail to comply with the representation and warranty in this clause.
10 COMPLIANCE WITH LAWS
(i) The Seller and any goods supplied by the Seller, will comply with all applicable laws, regulations, conventions and standards of the country(ies) in which it, and the Goods are located before title passes to the Buyer. This includes those that relate to the manufacture, labelling, transportation, importation, exportation, licensing, approval or certification of the Goods, environmental matters, data protection and privacy, employment conditions and working hours, discrimination, health and safety and human rights.
(ii) The Seller further represents that neither it or its subcontractors, vendors, agents or other associated third parties will utilise child, slave, prisoner or any other form of forced or involuntary labour, or engage in abusive employment or corrupt business practices, in the supply of Goods or the provision of services to/for the Buyer.
(iii) The Seller shall not engage in any activity, practice or conduct which would constitute either;
a) a UK tax evasion facilitation offence under Section 45(5) of the Criminal Finances Act 2017;
b) a foreign tax evasion facilitation offence under Section 46(6) of the Criminal Finances Act 2017.
(iv) The Seller shall have in place such policies and procedures as are reasonable to prevent the facilitation of tax evasion by its employees or another person and to ensure compliance with 10 (iii) above.
(v) The Seller shall promptly report to the Buyer any request or demand from a third party to facilitate the evasion of tax within the meaning of Part 3 of the Criminal Finances Act 2017.
The Buyer may without liability or compensation to the Seller cancel this contract at any time before all of the Goods are delivered by giving written notice, upon which notice the Buyer shall cease to be bound to receive delivery of any further Goods or to pay that part of the Price which relates to Goods which have not been delivered.
The Order and the Conditions thereof shall be governed by and construed according to English law and it is agreed for the exclusive benefit of the Buyer that English courts shall have jurisdiction to settle any disputes which may arise in connection therewith.
The Seller shall not without the written consent of the Buyer, assign, sub-let or transfer the Order or any part of it.
14 INFRINGEMENT OF PATENTS
The Seller shall fully indemnify the Buyer against any actions, claims, demands, costs, charges and other expenses arising from or incurred by reason of any infringement or alleged infringement of any patent, registered design, trademark, trade name or other like right arising from the use or sale of the Goods and against all costs, loss and damages which the Buyer may suffer or incur in any action for such infringement or for which the Buyer may become liable in any such action.
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