Terms & Conditions
TERMS AND CONDITIONS OF PURCHASE
1.1. Buyer means Silentbloc UK limited (company number 03471683) or Dellner Woodville Limited (company number 06709671), whose registered address is at Victoria Works, Thrumpton Lane, Retford, Nottinghamshire DN22 6HH or any Group Company.
1.2. Conditions means the terms and conditions of purchase set out in this document and any special terms and conditions expressly agreed in Writing by the parties.
1.3. Contract means the Order subject to the Conditions and the Specification.
1.4. Delivery Date means the date specified by the Buyer in the Order when the Goods are to be delivered.
1.5. Goods mean the articles and/or any services which the Buyer agrees to buy from the Seller.
1.6. Group Company means any subsidiary or holding company of the Buyer and any subsidiary company of any holding company of the Buyer from time to time.
1.7. Intellectual Property Rights means patents, applications for patents, trade marks or trading names (whether or not registered or registrable) rights in the know-how, designs (registered or registrable and including applications for registered designs), copyright (including rights in computer software), topography rights, and other rights in semiconductor chips, design rights, utility models, rights in inventions, and all rights having equivalent or similar effect wherever situated.
1.8. Know-How means information, knowledge, experience, formulae, data and designs the property of the Buyer at the date of this Contract relating to any constituent part of the Goods.
1.9. Order means the terms of supply, Official Order Form of the Buyer signed by an authorised signatory of the Buyer and/or the Purchase Order issued by the Buyer to the Seller.
1.10. Price means the price for the Goods.
1.11. Seller means the person whose name and address are set out in the Order of the Buyer.
1.12. Specification means any specification issued at any time by the Buyer to the Seller.
1.13. Writing includes cable, facsimile or electronic transmission whether or not exclusively machine-readable and all comparable means of communication. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time. The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. CONDITIONS APPLICABLE
2.1. The Conditions shall apply to all Contracts for the purchase of Goods by the Buyer from the Seller to the exclusion of all other terms and conditions expressly excluding any terms or conditions which the Seller may purport to apply under any sales offer or similar document.
2.2. Despatch or delivery of the Goods by the Seller to the Buyer shall be deemed conclusive evidence of the Seller’s acceptance of these Conditions.
2.3. Any variation of these Conditions (including any special terms and conditions agreed between the parties) shall not be binding upon the parties unless agreed in Writing by the Buyer.
3. PRICE AND PAYMENT
3.1. The Price shall be the Price specified in the Order. The Price is exclusive of VAT which shall be due at the rate applicable on the date of the Seller’s invoice. No change in the Price shall be effective without the Buyer’s prior consent in Writing.
3.2. Payment of the Price and VAT shall be due 62 days following the month in which the goods have been satisfactorily received from the seller.
3.3. The Buyer may set off against the Price (including any applicable VAT payable) amounts due from the Seller whether under any Contract or otherwise.
3.4. All invoices shall bear the Buyer’s Order Number and Code and shall be despatched within three days of despatch of Goods.
3.5. Unless agreed in Writing by the Buyer, any Goods or invoices received by the Buyer after the 25th day of any calendar month shall not be accepted until the following calendar month and shall be deemed as have being received on the [first] day of that month.
3.6. Subject to Condition 3.3, if any sum due and payable is not paid in accordance with the provisions of these Conditions, the Seller shall be entitled to charge interest at the rate of 2 per cent above the base rate of Bank of England from time to time in force from the date of notice until the date of actual payment. Such interest shall accrue from day-today and be payable after as well as before any judgment. Interest shall not accrue or be payable on any monies or payment withheld, deducted or suspended pursuant to bona fide dispute between the parties. The parties agree that the right to claim interest under this Condition is a substantial remedy for late payment and is in substitution for any statutory or other right to claim interest and/or other remedy for late payment under the Late Payment of Commercial Debts (Interest) Act 1998.
4. THE GOODS
4.1. The quantity and description of the Goods shall be as set out in the Order.
4.2. The Seller shall ensure that all the Goods shall be manufactured, stored, tested and packed in accordance with the Order and with all Standards applicable to the Goods.
4.3. The Seller shall comply with the Buyer’s Specification and all applicable Standards and legal requirements concerning the design, manufacture, processing, storage and testing of the Goods.
4.4. The Seller shall permit the Buyer or its representatives or agents to inspect and test the quality of the Goods and their compliance with the Specification and the Order at any time during their manufacture and processing.
4.5. If the Buyer is not reasonably satisfied that the Goods or their manufacture or processing comply in all material respects with the Contract the Seller without extra cost to the Buyer shall take all steps necessary to ensure due compliance. If the Goods fail to comply with the Specification then the Buyer shall be entitled to reject the Goods.
4.6. If the Seller is unable to ensure due compliance with the Contract and the Specification either by rectification or replacement within the time required by the Buyer the Buyer may either:
4.6.1. return the Goods to enable the Seller to rectify the Goods; or
4.6.2. obtain replacement Goods elsewhere. Any loss or additional expense so incurred by the Buyer shall be reimbursed on demand by the Seller.
4.7. The Seller will provide Certificates of Test or Conformance if so instructed in the Order.
4.8. Where the Buyer supplies materials or tools they may not be used by the Seller except for the manufacture of Goods for the Buyer. All tools remain the property of the Buyer and must be returned upon demand. The property in the Buyer’s materials whether charged or not remains with the Buyer. The risk passes to the Seller on delivery. The Seller will on request render a complete accounting of the use of materials supplied and stock in hand.
5. INTELLECTUAL PROPERTY RIGHTS
5.1. It is the intention of the Buyer and the Seller that the Seller will provide the Goods to the Buyer in accordance with the Specification provided by the Buyer. In certain circumstances the Goods will be manufactured and supplied by the Seller in accordance with the Know-How and Intellectual Property Rights of the Buyer.
5.2. The Buyer hereby grants and the Seller hereby accepts, subject as provided in these Conditions, a non-exclusive, non-transferable, royalty-free right and licence under the Know-How to manufacture and supply to the Buyer the Goods. For the avoidance of doubt, this grant does not include the right of the Seller to grant sub-licences.
5.3. The Seller shall at all times take all steps necessary to maintain the confidentiality and registrability of the Buyer’s Intellectual Property Rights and shall do nothing whatsoever which shall prejudice the right to apply for any registered protection of the Buyer’s Intellectual Property Rights.
5.4. The Seller will provide all reasonable assistance and co-operation to the Buyer to maintain, perfect and enforce the Buyer’s Intellectual Property Rights and the Seller will execute all documents and do all acts and things as may be necessary or proper to procure the grant of registered protection under any such applications.
5.5. Save as otherwise provided in these Conditions, the Seller shall not have nor gain any rights to the Know-How or Intellectual Property Rights of the Buyer by virtue of any sale made by the Seller hereunder
6. WARRANTIES AND LIABILITY
6.1. The Seller warrants that all Goods supplied are fit and sufficient for the purpose for which they are intended to be used and that they are of satisfactory quality and free from defects whether patent or latent in both material and workmanship and that any services shall be performed in accordance using such skill and care as is to be expected from a provider of such services experienced in the provision of services of the size, type, scope and complexity of the services forming part of the Services and in accordance with all applicable laws. The benefit of this Warranty will pass to the Buyer and to persons to whom other goods incorporating the Seller’s goods may be sold. Such persons shall be entitled to enforce this term of the Contract.
6.2. The Seller warrants that the Goods will at the time of delivery correspond to the Order and the Specification given by the Buyer. All warranties, conditions or terms relating to fitness for purpose, merchantability or condition of the Goods implied by statute or common law are expressly incorporated into these Terms and Conditions.
6.3. The Seller warrants that the Goods, in so far as they are not designed by the Buyer, may be sold anywhere in the world without infringing the Intellectual Property Rights of any third party. The Seller will indemnify the Buyer against any damages, compensation or losses incurred by the Buyer as a result of any claim. If the Buyer believes that any Intellectual Property Rights are being infringed it reserves the right to cancel the Order without redress.
7. DELIVERY OF THE GOODS
7.1. Delivery of the Goods shall be made in accordance with the Buyer’s instructions on the Delivery Date. After due notice the Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery. Delivery shall take place between the hours of 7.30a.m. and 4.00p.m. Mondays to Thursdays inclusive and 7.30a.m. and 12.00 midday Fridays unless otherwise expressly agreed between the parties.
7.2. Unless agreed in writing by the Buyer, no deliveries shall be accepted after the 25th day of any calendar month.
7.3. The Delivery Date is of the essence of this Contract.
7.4. If the Seller fails to deliver all of the Goods in accordance with the Contract on the Delivery Date then without prejudice to the Buyer’s other rights and with effect from the Delivery Date
7.4.1. The Buyer may terminate the Contract. In this event without prejudice to the Buyer’s other remedies the Seller shall at the Seller’s cost promptly collect any Goods from the Buyer which have been delivered to the Buyer or in accordance with the Buyer’s instructions.
7.4.2. Where delivery of a quantity of the Goods which corresponds to the Contract which is less than the agreed quantity has been tendered and the Buyer has not exercised its rights of termination under clause 7.3.1 the Buyer shall be entitled to accept the Goods which correspond to the Contract and to recover damages for the Seller’s breach in respect of the failure to delivery the remainder of the Goods.
7.4.3. The Buyer may require the Seller promptly to deliver sufficient Goods which correspond to the Contract to comply with the quantity required. The Buyer may exercise these rights by notice in Writing to the Seller.
7.5. Unless previously agreed in Writing no Goods in excess of the quantity stated in the Order will be accepted or paid for by the Buyer. Excess Goods will be returned at the Seller’s risk and cost.
7.6. With each delivery the Seller will provide an Advice Note bearing the Buyer’s Official Order Number and Code. When delivery is made by a third party on behalf of the Seller the Seller will post to the Buyer on the same day as dispatch of the Goods to such third party a separate Advice Note. The Buyer shall not be obliged to inspect the Goods until receipt of such Advice Note.
7.7. When Goods are to be delivered to the Buyer over a period of time, whether or not in accordance with any delivery schedule, the Buyer reserves the right upon reasonable notice to fix or vary the rate, frequency or dates of delivery.
8. CARRIAGE AND PACKING
Unless otherwise expressly agreed in Writing between the parties or so stated in the Order:
8.1. all Goods shall be delivered carriage and paid to:
8.1.1 Burton Works, Wellington Road, Burton upon Trent, Staffordshire DE14 2AP; or
8.1.2 any other address as specified in the Order.; and
8.2. Goods shall be securely packed.
9. ACCEPTANCE OF GOODS
9.1. The Buyer shall not be deemed to have accepted any part of the Goods until after the Buyer has (or the Buyer’s sub-buyers have) actually inspected the Goods and ascertained that they are in accordance with the Contract. The Buyer may reject Goods which are not in accordance with the Contract by reason of any defect, shortage in quantity, damage or failure to comply with description, sample or Specification or otherwise until a reasonable time after such inspection.
9.2. The Buyer may by notice to the Seller prior to acceptance reject any Goods which are not in accordance with the Contract. The Buyer may set off against any payment due to the Seller (whether under this Contract or otherwise) the Price of such Goods. Unless within a reasonable time of receipt of notice of rejection the Seller collects such Goods the Buyer may dispose of them as the Buyer shall think fit (provided that if the Buyer sells such Goods the Buyer shall account to the Seller for the net proceeds of such sale).
9.3. The Seller agrees to permit the Buyer to return any of the Goods which are not in accordance with the Contract at any time up to 6 months after delivery notwithstanding that the-Goods may have already been accepted by the Buyer.
10. TITLE AND RISK
10.1. Title shall pass on delivery of the Goods
10.2. Risk shall pass on delivery of the Goods.
11. REMEDIES OF BUYER
11.1. The Seller shall indemnify the Buyer against all claims by the customers of the Buyer and their sub-buyers arising out of any breach whatever by the Seller of this Contract due to want of satisfactory quality or lack of fitness for purpose of the Goods or any of the Goods.
11.2. Without prejudice to the other rights of the Buyer for breach by the Seller where any of the Goods supplied to the Buyer are not in accordance with the Contract the Seller shall at the option of the Buyer forthwith upon notice being given in Writing either repair or replace such Goods. The Buyer shall afford the Seller an opportunity to inspect the Goods within a reasonable time following delivery and before any use is made of them.
11.3. The Buyer shall notify the Seller of any non-delivery of a part or the whole of the Goods within 14 days of the date of notification by the Seller to the Buyer of dispatch of such Goods.
11.4. Nothing in this Contract shall restrict or exclude liability for death or personal injury caused by the negligence of the Seller or affects the statutory rights of a buyer dealing as a consumer.
11.5. The Seller will fully indemnify the Buyer for all loss or damage suffered by the Buyer by reason of any misrepresentation by the Seller (whether or not fraudulent) any breach of any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, or for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), or costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) or for any defects in workmanship or material or design which do not originate from the Buyer which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer. In the event of any claim being made against the Buyer the Seller will render all reasonable assistance to the Buyer as may be required to defend or settle any such claim.
12.1. The Buyer may cancel the Order in respect of all or part only of the Goods by giving notice to the Seller at any time prior to delivery, in which event the Buyer’s sole liability shall be to pay to the Seller the price for the Goods in respect of which the Buyer has exercised its right of cancellation, less the Seller’s net saving of cost arising from cancellation.
12.2. The Buyer may terminate the Contract without liability to the Seller by giving notice to the Seller at any time if: the Seller breaches any material term of this Contract; the Seller becomes insolvent or bankrupt or goes into liquidation, receivership or administration or is wound up or enters into a composition or arrangement with its creditors or ceases or threatens to cease to carry on business]or takes or suffers any similar or analogous action in any jurisdiction; or the Buyer reasonably believes that any of the events mentioned above is about to occur in relation to the Seller and notifies the Seller accordingly.
13. GOVERNMENT CONTRACTS
Where the Order is placed in connection with a contract with a Government Department the relevant Terms and Conditions of such Government Department contract will apply to the Order If such contract is cancelled by the Government Department before manufacture involving the Goods has taken place hereunder the Buyer may without liability cancel the Order. The Buyer will promptly provide the Seller with a copy of the relevant governmental terms and conditions.
The Seller shall not assign or sub-contract the Order without the Buyer’s written consent.
15. WORK ON BUYER’S SITE
15.1. Any Seller which provides labour to work on the Buyer’s premises for the erection, installation, repair or servicing of equipment or for any other purpose and regardless of whether the persons concerned are directly employed or sub-contractors employed by the Seller the following special conditions shall apply:
15.2.1 Full and proper insurance covering Contract Works. Employers’ Liability and Public Liability shall be effected and maintained by the Seller until all works are completed.
15.2.2 The Seller will promptly provide proof of adequate cover if requested.
15.2.3 All such employees or sub-contractors of the Seller will report to the security gate office on entering and leaving the Buyer’s premises.
16.1. The Seller shall keep strictly confidential all information concerning the business and affairs of the Buyer obtained from the other either pursuant to the Contract or prior to and in contemplation of it, shall use the same exclusively for the purposes of the Contract, and shall disclose the same only to those of its directors and employees to whom and to the extent that such disclosure is reasonably necessary for the purposes of the Contract.
16.2. The obligations of clause 16.1 above shall survive the expiry or termination of the Contract but shall not apply to any information which: the Seller can demonstrate was already in its possession and at its free disposal prior to receipt under the circumstances mentioned at clause 16.1 above; is subsequently disclosed to the Seller without any obligation of confidence by a third party who has not derived it directly or indirectly from the Buyer; enters the public domain through no act or default of the Seller, its agents or employees; or is required by law to be disclosed.
16.3. The Seller shall not, without the prior written consent of the Buyer, use the Order and/or the Buyer’s name in any way for the purpose of advertisements or publicity.
17.1. The Buyer may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group.
17.2. 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 principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. If such written notice is given by facsimile transmission, a copy of that notice must be sent as soon by post as is reasonably possible after such transmission.
17.3. All tools, materials and documents supplied by the Buyer or prepared or obtained by the Seller for and at the sole cost of the Buyer shall be and remain the property of the Buyer (the “Buyer’s Property”). The Buyer’s Property shall, while in the Seller’s possession or control, be at the Seller’s risk and shall be maintained by the Seller in good order and condition and insured against all risks. On completion of the Order, or otherwise as directed by the Buyer, the Buyer’s Property shall be returned to the Buyer in good order and condition at the Seller’s risk and expense and, if it does not do so, the Buyer shall be entitled to enter upon the Seller’s premises to take possession of the Buyer’s property. If it is not so returned, the Buyer may, as an alternative to entering upon the Seller’s premises to take possession of the same, withhold or require reimbursement of such part of the payment as is necessary to replace or repair the Buyer’s Property.
17.4. No waiver by the Buyer of any breach of the Contract by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision.
17.5. 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 provision in question shall not be affected thereby.
17.6. A person who is not a party to the Contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
18. PROPER LAW
18.1. This Contract is subject to the law of England and Wales and the Courts of Jurisdiction shall be exclusively those of England.
TERMS AND CONDITIONS OF SALE
1.1. In these Conditions:
1.1.1. ‘COMPANY’ means Silentbloc UK limited (registered in England under number 3471683) whose registered office is at Thrumpton Lane, Retford, Nottinghamshire DN22 6HH
1.1.2. ‘CONDITIONS’ means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in Writing between the Customer and the Company
1.1.3. ‘CONTRACT means the contract for the purchase and sale of the Goods
1.1.4. ‘CUSTOMER’ means the person who accepts a quotation of the Company for the sale of the Goods or whose order for the Goods is accepted by the Company
1.1.5. ‘GOODS’ means the goods and services (including any instalment of the goods or any parts for them) which the Company is to supply in accordance with these Conditions
1.1.6. ‘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 construed 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 THE SALE
2.1. The Company shall sell and the Customer shall purchase the Goods in accordance with: any written quotation of the Company which is accepted by the Customer and subsequently confirmed in Writing by the Company; any acknowledgement of order issued by the Company to the Customer; any invoice issued by the Company to the Customer; or any written order of the Customer which is accepted by the Company, subject in each case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made by the Customer.
2.2. No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Customer and the Company.
2.3. The Company’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Company in Writing. In entering into the Contract the Customer acknowledges that it does not rely on any such representations which are not so confirmed.
2.4. 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 Company shall be subject to correction without any liability on the part of the Company.
2.5. The Company reserves the right to withdraw any quotation without notice after 28 days.
3. ORDERS AND SPECIFICATIONS
3.1. No order submitted by the Customer shall be deemed to be accepted by the Company unless and until confirmed in Writing by the Company’s authorised representative.
3.2. The Customer shall be responsible to the Company for ensuring the accuracy of the terms of any order (including any applicable specification, drawing or design) submitted by or on behalf of the Customer and for giving the Company any necessary information relating to the Goods within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
3.3. The quantity, quality and description of and any specification for the Goods shall be those set out in the Company’s quotation (if accepted by the Customer) or the Customer’s order (if accepted by the Company).
3.4. If the Goods are to be manufactured or any process is to be applied to the Goods by the Company in accordance with a specification, drawing or design submitted by the Customer, the Customer warrants to the Company that it has full right and title to procure for the Company the right to manufacture the Goods in accordance with the specification or sign and the Customer shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Customer’s specification.
3.5. The Company 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 to be supplied to the Company’s specification, which do not materially affect their quality or performance.
3.6. No order which has been accepted by the Company may be cancelled by the Customer except with the agreement in Writing of the Company and on terms that the Customer shall indemnify the Company in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Company as a result of cancellation.
3.7. All plans, drawings, designs, specifications and other written technical material prepared by the Company for use in relation to the Contract and the copyright therein shall remain the property of the Company and the Customer shall not copy or disclose them to third parties without the prior written consent of the Company.
4. PRICE OF THE GOODS
4.1. The price of the Goods shall be the Company’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Company’s published price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom, the Company’s published export price list shall apply. All prices quoted are valid for 28 days only or until earlier acceptance by the Customer, after which time they may be altered by the Company without giving notice to the Customer.
4.2. The Company reserves the right, by giving notice to the Customer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Company which is due to any factor beyond the control of the Company (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the 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 Customer, or any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate information or instructions.
4.3. Except as otherwise stated under the terms of any quotation or in any price list of the Company, and unless otherwise agreed in Writing between the Customer and the Company, all prices are given by the Company on an ex works basis, and where the Company agrees to deliver the Goods otherwise than at the Company’s premises, the Customer shall be liable to pay the Company’s charges for transport, packaging and insurance.
4.4. The price is exclusive of any applicable value added tax, which the Customer shall be additionally liable to pay to the Company.
4.5. Packing is non-returnable (whether or not included in the charges for the Goods) unless specified on the invoice to be returnable in which event upon the prompt return of the packing material in good condition carriage paid the amount charged in respect thereof shall be credited to the Customer.
5. TERMS OF PAYMENT
5.1. Subject to any special terms agreed in Writing between the Customer and the Company, the Company shall be entitled to invoice the Customer 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 Customer or the Customer wrongfully fails to take delivery of the Goods, in which event the Company shall be entitled to invoice the Customer for the price at any time after the Company has notified the Customer that the Goods are ready for collection or (as the case may be) the Company has tendered delivery of the Goods.
5.2. The Customer shall pay the price of the Goods within 28 days of the date of the Company’s invoice, and the Company shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Customer. 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. The Customer shall make no deduction or set-off of any kind from nor apply any discount to any invoice of the Company without the prior written consent of the Company.
5.4. If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
5.4.1. cancel the Contract or suspend any further deliveries to the Customer;
5.4.2. appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between the Customer and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Customer); and
5.4.3. charge the Customer interest (both before and after any judgment) on the amount unpaid, at the statutory rate of three per cent per annum above Lloyds TSB Bank base rate from time to time in force, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6.1. Delivery of the Goods shall be made by the Customer collecting the Goods at the Company’s premises at any time after the Company has notified the Customer that the Goods are ready for collection or, if some other place for delivery is agreed by the Company, by the Company delivering the Goods to that place.
6.2. Any dates quoted for delivery of the Goods are approximate only and the Company shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Company in Writing. The Goods may be delivered by the Company in advance of the quoted delivery date upon giving reasonable notice to the Customer
6.3. Where delivery of the Goods is to be made by the Company in bulk, the Company reserves the right to deliver up to ten per cent more or less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered.
6.4. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Company to deliver anyone or more of the instalments in accordance with these Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
6.5. If the Company fails to deliver the Goods (or any instalment) for any reason other than any cause beyond the Company’s reasonable control or the Customer’s fault, and the Company is accordingly liable to the Customer, the Company’s liability shall be limited to the excess (if any) of the cost to the Customer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.6. If the Customer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Company’s fault) then, without prejudice to any other right or remedy available to the Company, the Company may:
6.6.1. store the Goods at the sole risk and cost of the Customer until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
6.6.2. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.
6.7. All Goods are consigned at Customer’s risk.
6.8. All orders, will be subject to a minimum charge of £500 (Value Added Tax excluded) per line item.
7. INSERTS AND COMPONENTS
If inserts or other components are to be provided by the Customer the following provisions shall apply:
7.1. Delivery shall be of such quantities as will allow for uninterrupted production in accordance with an agreed rate of delivery and shall be made at the times stipulated by the Company.
7.2. The Company shall be provided with a minimum of 2 per cent excess quantity of inserts or components to cover manufacturing losses. Excess inserts or components which are not actually required shall be returned to the Customer at its expense.
7.3. All inserts and components shall be of suitable quality shall comply strictly with the agreed dimensions and tolerances and shall be delivered to the Company free of all charges in a condition suitable for incorporation in the Goods.
7.4. Any defect whatsoever in the Goods which shall be attributable to unsuitable or faulty inserts or components shall not entitle the Customer to rescind the Contract, reject any Goods, make any deduction from the agreed price or claim damages in respect of any such defect.
7.5. Couplings shall be supplied in accordance with the appropriate British Standard Specification, unless otherwise agreed in Writing by the Company.
Unless otherwise agreed the Company is solely entitled to the property in and use of all moulds, dies, jigs or other tooling provided by the Company even where an agreed charge or contribution towards the cost is levied.
Customer’s property sent to the Company for treatment and moulds sent to the Company for use in production are subject to a general lien for work done upon or with them and also for the general balance of the account. Whilst every care will be exercised, the Company cannot accept any liability for damage to such items whilst in its possession, nor can it agree to accept any debit or charge in connection with such goods when sent forward to the Company.
10. INSPECTION AND SPECIAL TESTS
All Goods are inspected before despatch and the Company accepts no liability for any damage or loss sustained in the event of the Goods being submitted to any special tests unless such tests were specified in the Customer’s order and the Company has accepted in writing the imposition of such tests. Colours shall be subject to reasonable variation.
11. RISK AND PROPERTY
11.1. Risk of damage to or loss of the Goods shall pass to the Customer:
11.1.1. in the case of Goods to be delivered at the Company’s premises, at the time when the Company notifies the Customer that the Goods are available for collection; or
11.1.2. in the case of Goods to be delivered otherwise than at the Company’s premises, at the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when the Company has tendered delivery of Goods.
11.2. Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Customer until the Company 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 Company to the Customer for which payment is then due.
11.3. Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as the Company’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as the Company’s property, but the Customer shall be entitled to resell or use the Goods in the ordinary course of its business.
11.4. Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold), the Company shall be entitled at any time to require the Customer to deliver up the Goods to the Company and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
12. WARRANTIES AND LIABILITY
12.1. Subject to the conditions set out below the Company warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of three months from the date of their initial use or three months from delivery, whichever is the first to expire.
12.2. The above warranty is given by the Company subject to the following conditions:
12.2.1. the Company shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Customer;
12.2.2. the Company shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in Writing), misuse or alteration or repair of the Goods without the Company’s approval;
12.2.3. the Company shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
12.2.4. the above warranty does not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.
12.3. Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
12.4. Where the Goods are sold under a consumer transaction (as defined by the Protection from Unfair Trading Regulations 2008) the statutory rights of the Customer are not affected by these Conditions.
12.5. Any claim by the Customer which is based on any defect in the quality or condition of the Goods or their failure to correspond with any specification shall (whether or not delivery is refused by the Customer) be notified to the Company within 30 days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Customer does not notify the Company accordingly, the Customer shall not be entitled to reject the Goods and the Company shall have no liability for such defect or failure, and the Customer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
12.6. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Company in accordance with these Conditions, the Company shall be entitled to replace the Goods (or the part in question) free of charge or, at the Company’s sole discretion, grant to the Customer such credit as is calculated by the Company or refund to the Customer the price of the Goods (or a proportionate part of the price), but the Company shall have no further liability to the Customer. Where any such valid claim is made the Company shall be entitled to require the Customer to return such Goods to the Company carriage paid.
12.7. Except in respect of death or personal injury caused by the Company’s negligence, the Company shall not be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of business or goodwill), loss of profits, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Company, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Customer, and the entire liability of the Company under or in connection with the Contract shall not exceed the price of the Goods except as expressly provided in these Conditions.
12.8. The Company shall not be liable to the Customer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Company’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company’s reasonable control. Without prejudice to the generality of the foregoing, the following shall, without limitation, be regarded as examples of causes beyond the Company’s reasonable control:
12.8.1. Act of God, explosion, flood, tempest, fire or accident;
12.8.2. war or threat of war, sabotage, insurrection, civil disturbance or requisition;
12.8.3. acts, restrictions, regulations, by-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
12.8.4. import or export regulations or embargoes;
12.8.5. strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Company or of a third party);
12.8.6. difficulties in obtaining raw materials, labour, fuel, parts or machinery;
12.8.7. power failure or breakdown in machinery;
12.8.8. fire, government regulations or failure of the Customer to supply any necessary information and drawings required in order to fulfil the order. If any delay is caused as aforesaid continues or in the opinion of the Company is likely to continue for more than three months, the Company shall have the right immediately to cancel the Contract or any unfulfilled portion thereof by notice in writing to the Customer.
13. INSOLVENCY OF THE CUSTOMER
13.1. This clause applies if:
13.1.1. the Customer makes any 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 purposes of solvent amalgamation or reconstruction); or
13.1.2. an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Customer;
13.1.3. a bona fide application in respect of an administration order and/or the appointment of a receiver is made; or
13.1.4. the Customer ceases, or threatens to cease, to carry on business; or
13.1.5. the Company reasonably apprehends that any of the events mentioned above is about to occur in relation to the Customer and notifies the Customer accordingly.
13.2. If this clause applies then, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer, 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.
14. EXPORT TERMS
14.1. In these Conditions ‘Incoterms’ means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
14.2. Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 12 shall (subject to any special terms agreed in Writing between the Customer and the Company) apply notwithstanding any other provision of these Conditions.
14.3. The Customer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
14.4. Unless otherwise agreed in Writing between the Customer and the Company, the Goods shall be delivered ex-works Wellington Road, Burton Upon Trent, Staffordshire DE14 2AP and the Company shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
14.5. The Customer shall be responsible for arranging for testing and inspection of the Goods at the Company’s premises before shipment. The Company shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
14.6. Payment of all amounts due to the Company (under this clause 14) shall be made by irrevocable letter of credit opened by the Customer in favour of the Company and confirmed by a bank in the United Kingdom acceptable to the Company or, if the Company has agreed in Writing on or before acceptance of the Customer’s order to waive this requirement, by acceptance by the Customer and delivery to the Company of a bill of exchange drawn on the Customer payable 60 days after sight to the order of the Company at such branch of Lloyds TSB Bank in England as may be specified in the bill of exchange.
15.1. The Company is a member of the group of companies whose holding company is icon polymer group limited, and accordingly the Company may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Company.
15.2. The benefits of this Contract may not be assigned or transferred to any other person, firm or company by the Customer without the prior written consent of the Company.
15.3. 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 principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
15.4. No waiver by the Company of any breach of the Contract by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
15.5. 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 provision in question shall not be affected.
15.6. Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated on the application of either party by the President for the time being of The Law Society of England and Wales.
15.7. Save for the companies noted at Condition 13.1, above, a person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
15.8. The Contract and any dispute or claim arising out of or in connection with it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Contract, its subject matter or formation (including noncontractual disputes or claims).