(1) ‘Seller’ means Instruments To Industry Ltd;
(2) ‘Buyer’ means the person, firm or Company to be supplied with the goods and / or services.
(3) ‘Order’ means the Buyer’s purchase order (whether written or verbal);
(4) ‘Goods’ means the goods (including any instalment of the goods or any part of them) described in the order
(5) ‘Services’ means the services to be performed so described in the order.
(6) ‘Free Issue’ means material or items issued free of charge by the Buyer to the Seller for the purposes of the order.
2. These conditions apply to all orders accepted by the Seller for goods and / or services and any variation of these conditions in any document of the Buyer is inapplicable unless accepted in writing by the Seller.
3. No representative or agent of the Seller has any authority to agree any terms or make any representations that are inconsistent with these conditions or the quotation. The Seller will not be bound by any statements made by any person purporting to act on the Seller’s behalf as to these conditions or the quotation or any statements as to the delivery, quality, performance or suitability of the goods unless any such statement is specifically confirmed in writing by a duly authorised officer of the Seller and annexed to the order.
4. Orders accepted by the Seller can be cancelled only with the written consent of the Seller, such consent to be in the Seller’s absolute discretion and then only by payment of reasonable cancellation charges which shall include expenses already incurred and account of commitments made by the Seller together with a sum twenty per cent of the contract price.
5. All prices are strictly net cash against invoice unless otherwise stated and are exclusive of purchase tax VAT or any similar taxes, levies or duties. The Seller reserves the right to charge interest without notice on accounts overdue at 5% above The Royal Bank of Scotland plc. bank base rate for the time being on a daily basis and compounded by three monthly rests.
6. The goods are supplied either in accordance with our, or the manufacturers specification and description and catalogues (if any) supplied (subject to any modifications made since publication). If we or the manufacturer adopts any changes in construction or design of the goods or the specification thereof the Buyer will accept the goods so changed in fulfilment of the order.
7. The quoted price for the goods or services may be varied by additions upwards by the Seller in accordance with market conditions at the date of actual supply and the Buyer shall pay such additions in addition to the quoted price. Without prejudice to the generality of the foregoing "market conditions" shall include any increase in the cost of labour and / or materials operation and / or transport.
8. Any time or date for delivery named by the Seller is an estimate only, and the Seller shall not be liable to any person, firm, corporate body or authority for the consequences of any delay. Failure to deliver at the time stated will not be sufficient cause for cancellation and the Seller will not be liable for any losses, costs, damages or expenses consequential or otherwise suffered by the Buyer. Where delivery is made in instalments, delay in delivering one or more instalments shall not entitle the Buyer to refuse to accept any remaining instalments. The Buyer shall not refuse to accept delivery of any consignment or instalment on account of any shortage or defect in any other delivery.
9. Delivery shall be accepted by the Buyer within the period (if any) named in the Sellers quotation or order confirmation and such full details as should be necessary (or required by the Seller) to enable the Seller to complete delivery within such period shall be supplied by the Buyer. If for any reason the Buyer is unable to accept delivery of goods at the time the goods are due and ready for delivery the Seller shall if its storage facilities permit, store the goods and take all reasonable steps to prevent their deterioration until their actual delivery and the Buyer shall be liable to the Seller for the reasonable cost (including insurance) of its so doing. This provision shall be in addition to and not in substitution for any other payment or damages for which the Buyer may become liable in respect of his failure to take delivery at the appropriate date.
10. (a) No claim for damage in transit, shortage of delivery or loss of goods will be entertained unless in the case of damage in transit or shortage of delivery a separate notice in writing is given to the carrier concerned and to the Seller within 7 days of the receipt of the goods, followed by a complete claim in writing within 14 days of receipt of goods, and in the case of loss of goods, notice is given to the carrier concerned and to the Seller and a complete claim in writing made within 7 days of the date of consignment.
Where the goods are accepted from the carrier concerned without being checked, the delivery documents of the carrier concerned must be signed ‘not examined’.
All goods shall be at the Buyer’s sole risk from the time of despatch from the Seller’s premises or, if delivery is made by the Seller, from the time of delivery to the Buyer's address or delivery to any carrier or agent acting on behalf of the Buyer.
(b) Deliveries may be wholly or partially suspended and the time of such suspension added to the original contract in the event of a stoppage delay or interruption of work in the establishment of the manufacturer or Seller during the delivery period as a result of strikes, lockout, trade disputes, breakdown, accident or any cause whatsoever beyond the control of the Seller.
(c) In the event of outbreak of hostilities (whether war is declared or not) in which the United Kingdom or the manufacturer's country of origin is involved, or in the event of national emergency, or if the Seller’s works should become either directly or indirectly so engaged on Government orders or orders under priority directions as to prevent or delay work on other orders the Seller shall be entitled at anytime, on notice to the Buyer to make partial deliveries only or to determine the contract, without prejudice in any case to rights accrued in respect of deliveries already made.
11. Where any services including attendance to site are undertaken by the Seller on the Buyer’s premises, the Buyer shall at its expense provide such facilities, foundations, services and equipment and do all things as the Seller requires for the performance of its services and ensure that the same are safe and suitable to enable such services to be performed and comply with all legislative and other requirements of whatsoever nature applicable at the Buyer’s premises. The Buyer is responsible for obtaining all consents of whatever nature which are necessary for the performance of the Sellers services. Afford access to the Buyer’s premises at such dates and times and provide such assistance as the Seller requires, and be responsible for making good and clearing away any material consequent upon the performance of the Sellers services.
12. (a) Any goods or materials given or supplied free issue or otherwise by the Buyer to the Seller for the performance of services by the Seller, subject to sub-clause 12(b) hereof shall remain at the sole risk of the Buyer who shall keep any such items insured to their full value.
(b) In the event that such goods or materials described in sub clause 12(a) hereof, and the Seller, having first carried out the services, has given the Buyer notice in writing that the goods or materials are ready for collection, then upon the expiry of six months from the date of such notice, the property in the goods or materials shall be deemed to pass to the Seller, which shall be entitled to deal with the goods or materials as it sees fit.
13. Unless otherwise agreed in writing by the Seller no condition warranty description or representation on the part of the Seller is made or to be implied or taken to have been made or implied as to the quality of life or wear of the goods or services supplied or that they will be suitable for any particular purpose or for use under any specific conditions notwithstanding that such purposes or conditions may be known or made known to the Seller at the time of this order and / or during any negotiation hereto.
14. (a) Goods represented by the Buyer to be defective shall not form the subject of any claim for work done by the Buyer or for any loss, damage or expense whatsoever arising directly or indirectly from such defect but such goods if returned to the Seller and accepted by the Seller as defective will at the request of the Buyer and if practicable be repaired or replaced as considered appropriate by the Seller. Defects in quality or dimensions in any delivery shall not be a ground for cancellation of the remainder of the order or contract.
In no circumstances must goods be delivered to the Seller’s drivers for return unless the Seller’s drivers produce written authorisation from the Seller. Goods returned must be in their original packaging and return must be, unless otherwise agreed in writing by the Seller, at the cost and risk of the Buyer.
(b) Subject to the Unfair Contract Terms Act 1977 provisions or any amendments or changes thereto, the Seller will not be liable for any damage or injury (whether direct or indirect) caused to the Buyer or the persons authorised or permitted by the Buyer to operate use or come into contact with the goods due to any faults or defect therein
(c) The Seller's liability thereunder shall cease if -
(i) the Buyer shall not have paid in full all invoices for goods or services supplied by the Seller;
(ii) the Buyer permits persons, firms or bodies other than the Seller or those approved or authorised by the Seller to affect any replacement of parts maintenance adjustments or repairs to the goods;
(iii) the Buyer has not properly maintained the goods in accordance with instructions pamphlets or directions given or issued by the Seller or manufacturer from time to time;
(iv) the Buyer uses any spare parts or replacements not manufactured by or on behalf of the Seller and supplied by it or fails to follow the Sellers instructions for the use of same.
15. (a) If the Buyer shall make default or commit breach of the contract or any other of his obligations to the Seller or if any distress or execution shall be levied upon the Buyers property or assets, of if the Buyer shall make or offer to make any arrangement or composition with creditors or commit any act of bankruptcy or if any petition or receiving order in bankruptcy shall be presented or made against him, or if the Buyer is a limited company and any resolution or petition to wind up such company's business (other than the purpose of amalgamation or reconstruction) shall be passed or presented, or if a receiver of such company's undertaking, property or assets, any part thereof shall be appointed, the Seller shall have the right forthwith to determine any contracts subsisting and upon written notice of such determination being to the Buyers last known address any subsisting contracts shall be deemed to have been determined without prejudice to any claim or right the Seller may otherwise make or exercise.
(b) Should default be made by the Buyer by not paying any sum or instalment due under any order as and when it becomes due, the Seller shall have the right whether to suspend all further deliveries until the default be made good or to cancel the order so far as any goods remain to be delivered thereunder.
16. (a) Unless otherwise agreed all goods and services are sold on the basis that payment in full will be made by not later than the last day of the month following the date of the invoice. All goods shall be at the Buyers sole risk from the time of despatch from the Sellers premises or, if delivery is made by the Seller, from the time of delivery to the Buyer's address or delivery to any carrier or agent acting on behalf of the Buyer. Notwithstanding this, ownership of the goods shall remain with the Seller until payment in full has been received by the Seller for the following:
the goods and / or services;
any goods and / or services supplied by the Seller to the Buyer;
any monies due from the Buyer to the Seller on any account.
Until ownership of the goods passes to the Buyer under these clauses, the Buyer shall:
be a bailee of the goods;
keep the goods separately and readily identifiable as the property of the Seller.
Any resale by the Buyer of the goods in which the ownership has not passed to the Buyer shall be treated as if made by the Buyer as agent for the Seller. If goods in which ownership has not passed to the Buyer are mixed with or incorporated into other goods the ownership in those other goods shall be held on trust by the Buyer for the Seller to the full extent of the sums recoverable by the Seller under these clauses. The Buyer shall keep any proceeds of sale as referred to above in a separate bank account but in any event the Seller shall have the right to trace such proceeds.
(b) At any time prior to ownership in goods passing to the Buyer (whether or not any payment is then overdue or the
Buyer is otherwise in breach of any obligation to the Seller) the Seller may (without prejudice to any other of its rights):
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;
require delivery up to it of all or any part of the goods;
terminate the Buyer’s 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 of 1986) or it having a receiver appointed or any execution or distress being levied on goods in its possession.
17. Each clause, sub-clause or part thereof within these Conditions of Sale is separate, severable and distinct. Any invalidity or unenforceability of any clause, sub-clause or part thereof shall not affect the validity or enforceability of the remainder in these Conditions of Sale, which shall remain in full force and effect.
18. The Law of England shall govern the validity construction and performance of any contract to which these conditions apply and the parties submit to the exclusive jurisdiction of the English Courts.