Platen Boring Ltd. (the Seller)
CONDITIONS OF SALE
The Seller’s Quotation or Acceptance of Order and any sale by tender is subject to the following terms and conditions, and the placing of an order with the Seller is to be deemed to be an acceptance of such terms and conditions by the Buyer to the exclusion of the Buyer’s or any other conditions of sale, purchase or otherwise.
No contract made on the basis of these conditions and no variation or modification of or substitution for these conditions shall be binding unless expressly accepted by the Seller in writing. The expression ‘goods’ as used herein includes all machinery, apparatus, accessories and attachments supplied by the Seller under the Contract of Sale whether or not manufactured by the Seller.
Quotations do not constitute an offer by the Seller to supply the goods or carry out the work referred to therein and no order placed in response to a quotation will be binding on the Seller unless accepted by the Seller in writing. All such acceptances by the Seller will be subject to availability of the necessary materials and to the Seller being able to obtain any necessary authorisation and/or licenses and to the same remaining valid.
Quotations for goods to be delivered from stock are made subject to the goods being unsold at the time of acknowledgement of order.
In the case of a sale by tender, the Seller’s tender shall remain open for acceptance within the time stated therein and is Subject to supplies of raw materials being available. Orders placed on the Seller’s tender should be made in writing and be unconditional. The Sellers tender, together with the Buyer’s unconditional acceptance shall constitute the Contract of Sale.
Specifications, drawings, descriptive and advertising matter, shipping specifications, weights, quantities, dimensions and performance figures are approximate only and shall not be binding on the Seller. The Buyer shall not be entitled to repudiate the Contract of Sale or to reject any goods or works thereunder if the goods or works are within tolerances normally acceptable in the circumstances.
All specifications and drawings submitted by the Seller shall remain its property and are returnable to the Seller. ‘They are submitted on the condition that they will not, without the Seller’s written consent be copied or divulged to a third party or used by the Seller or any other person except strictly for the purpose of the Contract of Sale.
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 EC requirements or, where the goods are supplied to the Seller’s specification, which do not materially affect their quality or performance. No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on the terms that the Buyer shall indemnify the Seller in full against all loss, including loss of profit, costs, including labour and materials, damages, charges and expenses incurred by the Seller as a result of cancellation.
The time given for delivery shall run from the date of acceptance by the Seller, the Buyer’s order to proceed or the date upon which the Seller is in possession of all information it requires to put the work in hand, whichever is the later. The delivery dates specified in the contract are approximate only and, unless otherwise expressly stated, time is not of the essence for delivery.
The Seller will endeavour to have the goods ready for delivery by the date agreed for delivery but it is agreed that the Buyer shall not be entitled to reject delivery of the goods or to repudiate the contract or the order or any part thereof or any other contract or order from the Buyer by reason of the Seller’s failure to deliver by the agreed date, The Seller will not be liable for any loss caused to the Buyer by late delivery of goods.
If delivery is delayed by force majeure circumstances (meaning circumstances beyond the Seller’s control including fire. flood, storm, Act of God, war, riot, civil commotion, strikes, lock-outs and other industrial action), the following provisions shall apply:
Delivery shall take place as follows:
Unless otherwise agreed and stated, the price agreed for the goods is delivery "ex works" and it shall be the Buyer’s duty to take delivery of the goods at the Sellers premises.
When the quotation is "delivered" or "Buyer’s Works", upon the arrival of the goods at the Buyer’s works in the Seller’s or carrier’s vehicle before unloading. The Buyer shall provide a reasonably firm roadway, proper means of access to the site and facilities for unloading.
7. TITLE TO GOODS
Notwithstanding delivery and the passing of risk in the goods, legal title to the goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
Until such time as legal title in the goods passes to the Buyer, the Buyer shall keep the goods as bailee for the Seller, separate from those of the Buyer and third parties, properly stored, protected. insured and identifiable as the Seller’s property.
Until such time as the legal title in the goods passes to the Buyer the Seller shall be entitled at any time to require the Buyer to deliver up the goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the goods are stored and repossess the goods.
The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall, without prejudice to any right or remedy of the Seller, forthwith become due and payable.
The Buyer’s right to possession of the goods supplied by the Seller shall terminate if the Buyer is declared bankrupt or makes any proposal to his creditors for any composition or voluntary arrangement or, if the Buyer is a company, an administrative receiver, administrator, or liquidator is appointed in respect of his business.
When the goods are ready for delivery the Seller will give the Buyer a notice of readiness for collection. It is a condition of this contract that the Buyer shall then within seven days of service of that notice either collect the goods or give the Seller instructions for their delivery at the Buyer’s expense.
If the Buyer fails either to collect the goods or give the Seller instructions for their delivery, the Seller may arrange for the storage of the goods, in which case:
If the Seller treats the Buyer’s breach as repudiatory, the Seller may do any of the following things, either alone or in any combination:
9. CONSUMER RETURN OF GOODS POLICY
All items to be returned must be sent back to the Seller via pre-paid freight, with the RETURN MATERIAL AUTHORIZATION (RMA) number clearly marked on the carton and noted on the packing slip. Such numbers can be obtained from the Seller upon request. No freight collect shipments will be accepted.
Where the return or cancellation is required through no fault of the Seller, a minimum 15% restocking charge applies to all non-defective products returned for credit within the first 30 days after Purchase. Thereafter, a larger restocking charge may be applied based upon the date of original shipment. Products will not be accepted for return 90 days after their original ship date. The Seller additionally reserves the right to impose a repackaging charge when products are returned with damaged packaging and cannot be directly resold, Furthermore, any product no longer normally carried in inventory will not be accepted for return under any circumstances.
It is the Buyers responsibility to provide adequate packaging to protect the product being returned. The Seller reserves the right to accept or reject the returned product subject to an inspection upon receipt. Products that are returned damaged may be rejected and therefore will not quality for any type of return credit.
10. PACKING AND CARRIAGE
In the case of goods for export, packing cases are not returnable and no allowance will be made in respect of them. In the case of goods to be consigned to a United Kingdom destination, packing cases are returnable but no extra charge is normally made for packing. If the cases and packing materials are not returned in good condition, with carriage paid and duty advised within one month, they must be paid for by the Buyer.
Any claim for loss or damage in transit must be made on the carrier and no responsibility will be accepted by the Seller for loss or damage in transit irrespective of whether the carrier or any other person is or is not liable for the loss or damage. Normally claims for loss or damage in transit cannot be made against the carrier unless the carrier’s conditions and rules are complied with, the delivery ticket is marked ‘damaged’ or ‘deficient’ and the Seller and the carrier are notified in writing within three days of receipt of the goods or in the case of non delivery, within 14 days of the date of despatch.
11. TERMS OF PAYMENT
When no other terms of payment are expressly provided in the Contract of Sale, the prices quoted shall be strictly net of any value added tax and any other tax or duty relating to the manufacture, transportation, export, import, sale or delivery of the goods (whether initially charged on or payable by the Seller or the Buyer) and any such tax or duty shall be for the account of the Buyer.
Changes to exchange rates, duties, insurance, freight and purchase costs (incl. for components & Services) may cause the Seller to adjust prices accordingly. Payment will be made before supply or Service or, if agreed, within 30 days of the invoice date without further notice from the Seller. Payment timing is of the essence. The Seller may suspend deliveries or Service until full payment for that order.
Except where the Seller reduces the contract price, the Buyer will pay the full invoice price of the goods delivered, without any deduction or set-off on the grounds of any alleged shortfall in delivery, defect in quality or failure to conform to specification or other breach of contract by the Seller.
If the Buyer fails to pay in full for the goods delivered by the date for payment under this provision, the Seller shall be entitled to bring an action for the price notwithstanding that property in the goods has not passed to the Buyer.
12. PRICE VARIATION
Prices referred to are based on costs at the date of the Seller’s quotation or tender, or if none, at the date of the Contract of Sale.
The Buyer shall be responsible for any increase in the cost to the Seller of materials, labour and other production costs and transport between the date of the quotation tender or Contract of Sale (as the case may be) and the date of despatch over those on which the Quotation Tender or Contract of Sale was based.
13. WARRANTY, LIMIT OF LIABILITY
The Seller warrants in relation to such part of the goods and components of the Seller’s manufacture that it will at the Seller’s choice either repair, replace or refund the full purchase price of any goods which are found within a period of 6 months from despatch from the Seller’s works ("the warranty period") to be defective or not in accordance with the contract or any express description or representation given or made on behalf of the seller in respect of the goods.
The Seller shall have no liability for any alleged failure of the goods to conform to the contract specification unless such failure is notified to the Seller within 6 months of their being delivered.
The Seller will require a reasonable period of time to carry out any repairs or replacements. The Buyer shall in any case accept and pay at the contract rate for all goods that conform to the contract specification,
The Seller warrants in relation to such part of the goods not of the Seller’s manufacture (including but not limited to parts and components supplied by others for goods manufactured by the Seller) that it will so far as it is able to do so give the Buyer the benefit of any express guarantee or warranty by the manufacturer or supplier of such goods and of any other rights which the Seller has against the manufacturer or supplier,
The Buyer’s remedies in respect of any claim under the foregoing express warranty or against any manufacturer or supplier as aforesaid or any claim under any condition or warranty implied by law or any other claim in respect of the goods or any workmanship in relation thereto (whether or not involving negligence on the part of the Seller) shall in relation to goods of the Seller’s manufacture be limited to repair replacement or refund of the purchase price as aforesaid and any condition or warranty implied by law shall cease to apply after the expiry of the warranty period and in all other cases be limited for the enforcement of the above mentioned liabilities of the manufacturer or supplier.
The Seller shall not be liable for any economic loss suffered by the Buyer as a result of failure of any goods to conform to the contract specification, including loss of profits, business, goodwill and other consequential losses,
The parties do not intend any third party rights to be created under or pursuant to this contract
14. INTELLECTUAL PROPERTY
The Seller will transfer to the Buyer such title as it has to the goods.
When goods or parts of goods are supplied or used to the Buyer’s own designs, specifications or instructions the Buyer shall be liable for and shall indemnify the Seller in respect of any infringement of any patent or other intellectual property rights of a third party.
If it alleged that the goods infringe any intellectual property right of any third party the Buyer shall:
The Seller does not warrant that the goods do not infringe such third party rights.
The Buyer will not, without the Seller’s permission resell any goods supplied under this contract from which any label or logo has been removed.
15. APPLICABLE LAW
The formation, construction and performance of the Contract of Sale shall be governed in all respects by English law.
It is agreed that the English courts shall have sole jurisdiction to decide any dispute arising out of or in connection with the formation, construction or performance of this contract.