FASTBOLT DISTRIBUTORS (UK) LIMITED – TERMS AND CONDITIONS OF SALE
1.1 In these conditions (unless the context otherwise requires):
a) “Buyer” means the person with whom the Contract is made;
b) “Seller” means Fastbolt Distributors (UK) Limited;
c) “Contract” means each contract between the Buyer and the Seller for the sale and purchase of the Goods;
d) “Goods” means the goods (or any instalment or part of them) to be supplied pursuant to the Contract.
1.2 All quotations and tenders and all other communications are given, sent or made on condition that the Seller shall not in any way be bound thereby unless the Seller has stated in writing that a quotation or tender shall be binding for a certain period and the Buyer has submitted an order within that period.
1.3 These Conditions alone shall govern and be incorporated in every Contract made by or on behalf of the Seller with the Buyer. They shall apply in place of and prevail over any terms or conditions, (whether or not in conflict or inconsistent with these Conditions), contained or referred to in any documentation submitted by the Buyer or in correspondence or elsewhere or implied by trade custom, practice or course of dealing unless specifically excluded or varied in writing by a director or other authorised representative of the Seller and any purported provisions to the contrary are hereby excluded or extinguished.
1.4 Acceptance by the Buyer of delivery of the goods shall be deemed to constitute unqualified acceptance of these Conditions, without prejudice to any other evidence of acceptance.
1.5 If, subsequent to any contract of sale which is subject to these Conditions, a contract of sale is made with the same Buyer without reference to any conditions of sale or purchase, such contract howsoever made shall be deemed to be subject to these Conditions.
2. TERMS OF SALE
2.1 EXCEPT WHERE THE SELLER AND THE BUYER HAVE OTHERWISE EXPRESSLY AGREED IN WRITING THE SALE SHALL NOT BE A SALE BY SAMPLE AND SAMPLES SUBMITTED AND DESCRIPTIONS OR ILLUSTRATIONS IN TRADE LITERATURE OR CATALOGUES SHALL BE TREATED AS SHOWING TYPE, CLASS AND GENERAL CHARACTER ONLY AND NOT AS IMPORTING TERMS OF WARRANTIES AS TO SUBSTANCE, PERFORMANCE, COLOUR, QUALITY OR DIMENSION, AND ANY FAILURE OF GOODS TO CONFORM WITH SUCH SAMPLES, DESCRIPTIONS OR ILLUSTRATIONS SHALL NOT CONSTITUTE ANY BREACH OF CONTRACT ON THE PART OF THE SELLER.
2.2 The goods are sold on the terms that they comply with the written terms and any description contained in the contract.
2.3 EXCEPT WHERE THE SELLER AND THE BUYER HAVE OTHERWISE EXPRESSLY AGREED IN WRITING (EXCLUDING ANY PRINTED FORM) OR EXCEPT WHERE THE SELLER HAS SUBMITTED TO THE BUYER A SPECIFICATION WHICH IS BINDING UPON THE SELLER THE BUYER IS DEEMED TO HAVE SATISFIED HIMSELF AS TO THE SUITABILITY OF THE GOODS FOR THE PURPOSE FOR WHICH THE BUYER REQUIRES THEM AND IT IS NOT A TERM OF THE CONTRACT THAT THE GOODS ARE FIT FOR THAT PURPOSE.
3.1 In the absence of a contract, the prices payable for the Goods shall be those set out in the Seller’s list prices current at the time of despatch. All prices quoted are net and exclusive of Value Added Tax. In the event of any increase in the cost to the Company of overheads, labour, goods, materials or transport after the date of quotation, tender or Contract, or in the case of any error by the Company in quotation, the Company reserves the right to increase its prices correspondingly.
3.2 The Buyer shall have no right to reject the Goods on the grounds of variation from the quantity ordered where such variation is plus or minus 10% of the quantity ordered subject to the Seller making a pro rata adjustment in price for the Goods to take account of such variation.
4.1 Unless the Contract provides to the contrary the Seller may deliver the Goods by instalments.
4.2 Where delivery is to be made by instalments each instalment shall be treated as a separate Contract and delay, default or non-delivery in respect of any instalment on the part of the Seller shall not entitle the Buyer to cancel the remainder of the Contract.
4.3 Failure by the Buyer to pay for any instalment or delivery when payment is due shall entitle the Seller to withhold further deliveries.
4.4 If the Buyer fails to accept delivery of any Goods when tendered or in the event of any shipment or delivery of goods being delayed at the Buyer’s request or due to the Buyer failing to take any action necessary on its part in relation to the Shipment or delivery of the Goods or in the event of the Buyer failing to make any payment for Goods when it is due the Seller shall be entitled to terminate the contract with immediate effect, to dispose of the goods as the Seller may determine, and to recover from the Buyer any loss and additional costs incurred as a result of such refusal or failure (including, without limitation, storage costs from the due date of delivery).
4.5 Delivery or despatch dates mentioned in any quotation, order acceptance form or elsewhere are approximate only and not of any contractual effect and the Seller shall not be under any liability to the Buyer in respect of any failure to deliver on any particular date or dates. Time for delivery shall not be of the essence of any contract to which these Conditions apply and shall not be made so by the service of any notice.
4.6 Delivery shall be at the Buyer’s premises unless otherwise stipulated or agreed by the Seller. The Seller will make an additional charge for delivery other than at its premises.
4.7 Section 32(2) of the Sale of Goods Act 1979 shall not apply. The Seller shall not be required to give the Buyer the notice specified in Section 32(3) of that Act.
5.1 Goods will be invoiced when they are ready for collection or despatch.
5.2 Unless otherwise agreed in writing invoices and accounts are due for payment on the last day of the month following that in which the invoice is dated. Time for payment shall be the essence of all Contracts.
5.3 If the Buyer shall fail to pay any amount when it is due or if the Buyer shall fail or refuse to accept delivery of any goods or give delivery instructions in relation thereto when they are ready for collection or despatch or in the event of the death or incapacity of the Buyer or if the Buyer enters into a voluntary arrangement or if a petition is presented for the making of a bankruptcy order against him or if he compounds with his creditors (being an individual) or if the Buyer is a limited company, in the event that an application for an order is made or a resolution is passed for the winding-up of the Buyer (otherwise than for the purposes of amalgamation or reconstruction previously approved in writing by the Seller) or if a meeting is called to approve the appointment of a liquidator to the Buyer or if a petition is presented to the Court for the appointment of a liquidator to the Buyer or if a receiver, manager, administrative receiver or an administrator is appointed or a petition is presented to the Court for the appointment of an administrator to the Buyer or over any part of the Buyer’s undertaking or if circumstances arise which might entitle the Court or a creditor of the Buyer to appoint a receiver, manager, administrative receiver or administrator or which might entitle the Court to make a winding-up order or if the Buyer takes or suffers any similar or analogous action in consequence of debt, then the purchase price of all goods invoiced or despatched by the Seller shall become forthwith due and payable by the Buyer and the Seller without prejudice to any of its other rights shall further be entitled to treat as cancelled every contract made between the Seller and the Buyer or at the Seller’s option to suspend or to continue the delivery of goods thereunder without prejudice to any other rights of the Seller.
5.4 Interest shall accrue and shall be payable by the Buyer on all sums due and outstanding (whether before or after payment) at the rate of 3% above the current Barclays Bank Limited Base Rate from the date such sums become due until the date of actual payment.
5.5 The Buyer shall not be entitled by reason of any dispute relating to the Goods or any claim made by the Buyer under this or any other contract to withhold payment of any amount which is due to the Seller hereunder or to set off against any such amount or payment any cross-claim whether liquidated or unliquidated for any sum or sums for which the Seller does not admit liability.
5.6 The Seller reserves the right to refuse to execute any order or contract if the arrangements for payment or the credit of the Buyer appear to the Seller to be or to become unsatisfactory.
5.7 The Buyer shall on demand reimburse to the Seller all fees and disbursements incurred by the Seller’s Solicitors or other agents with regard to the recovery of any sums due and outstanding from the Buyer.
6. RISK AND TITLE
6.1 THE RISK IN THE GOODS SHALL PASS TO THE BUYER WHEN THE GOODS ARE DELIVERED TO THE BUYER’S PREMISES OR, IF SOONER, WHEN THE GOODS ARE DELIVERED TO THE BUYER’S AUTHORISED COURIER OR TO SUCH OTHER PREMISES OR CARRIER AS ARE DIRECTED BY THE BUYER.
6.2 The property shall not pass to the Buyer but shall remain vested in the Seller until all sums owing from the Buyer to the Seller on whatsoever grounds and whether in respect of this or any other contract or transaction shall have been paid, and until such time the Buyer shall hold the Goods as bailee for the Seller. Such sums shall not be treated as paid until all cheques, bills or other instruments of payment have been honoured in accordance with their terms.
6.3 The Buyer shall if so required store, mark or designate all Goods referred to in subclause 6 (2) hereof so as clearly to show that they are the property of the Seller.
6.4 If the Buyer shall default in the punctual payment of any sum due to the Seller whether under this contract or otherwise or immediately upon the commencement of any actual proceedings against the Buyer which could affect the Buyer’s solvency the Seller shall be entitled forthwith to repossess any Goods which remain the property of the Seller and the Buyer shall for that purpose afford the Seller access to and the Seller shall be and is entitled by these conditions to enter any premises of which the Buyer is in occupation or to which he has access and where any such goods may then be.
6.5 Where property in the Goods has not passed to the Buyer the Buyer shall not pledge or allow any lien or charge to arise over the Goods or any documents of title thereto and shall not deal with them otherwise than in the ordinary course of the Buyer’s business.
6.6 In the event of any sale or disposition of any Goods by the Buyer where property in the Goods has not passed to the Buyer the Buyer shall hold on trust for the Seller: I. where the Goods have not been mixed with or incorporated in or attached to other Goods or land or buildings the whole of the proceeds of the sale or disposition
II. in any other case so much of the proceeds of sale as is equal to the contract price of the goods under this agreement
III. the right to receive the proceeds of sale or disposition as set out in (I) and (II) hereof.
6.7 Nothing in this condition shall confer any right on the Buyer to return Goods supplied by the Seller or to refuse or delay payment for them.
6.8 From the time of delivery until property in the goods passes to the Buyer the Buyer shall insure the goods for their full value with a reputable insurance office. Upon request, the Buyer shall use reasonable endeavours to have the Seller’s interest in the goods noted in the insurance policy. Until property in the goods passes to the Buyer the Buyer shall hold the proceeds of any claim on such insurance policy on trust for the Seller and shall forthwith account to the Seller with such proceeds.
7. INTELLECTUAL PROPERTY
7.1 IN RESPECT OF INTERNATIONAL SUPPLY CONTRACTS (AS DEFINED BY SECTION 26 OF THE UNFAIR CONTRACT TERMS ACT 1977) ONLY, THE SELLER SHALL HAVE NO LIABILITY TO THE BUYER
IN THE EVENT OF GOODS INFRINGING OR BEING ALLEGED TO INFRINGE THE RIGHTS OF ANY THIRD PARTY.
7.2 IN RESPECT OF ALL SALES OTHER THAN INTERNATIONAL SUPPLY CONTRACTS (AS DEFINED BY SECTION 26 OF THE UNFAIR CONTRACT TERMS ACT 1977), if at any time any allegation of infringement of letters patent, copyright or design rights is made in respect of the Goods or if in the Seller’s reasonable opinion such an allegation is likely to be made, the Seller may at its option and at its own expense:
I. modify or replace the Goods without detracting from overall performance thereof, so as to avoid the infringement; or
II. procure for the Buyer the right to continue to use the Goods; or
III. repurchase the Goods at the price paid by the Buyer less depreciation at such rate as is applied by the Seller to its own equipment.
7.3 The Buyer shall notify the Seller forthwith of any claim made or action brought or threatened alleging infringement of the rights of any third party. The Seller shall have control over and shall conduct any such proceedings in such manner as it shall determine. The Buyer shall provide all such reasonable assistance as the Seller may request. The cost of any such proceedings shall be borne in such proportions as the parties shall determine.
8. FORCE MAJEURE – UK BUYERS
8.1 This clause shall not apply to contracts which are within the description contained in section 26 of the Unfair Contract Terms Act 1977.’
8.2 If the Seller is prevented, hindered or delayed from making delivery of any Goods by reason of Act of God, fire, flood, storm, war, hostilities, civil disturbance, malicious damage, governmental restriction or regulation of any kind, strikes or industrial disputes, accident or breakdown of plant or machinery, shortages or increased difficulty or expense in obtaining workers, materials or transport, force majeure or any other cause of whatsoever nature beyond the Seller’s control the Seller may give notice in writing to the Buyer either:
I. cancelling the Seller’s outstanding obligations to deliver Goods under the Contract and in which case the Seller shall be deemed not to be in breach of Contract and in no event shall the Seller be liable for any loss or damage whatsoever arising out of such cancellations or
II. extending the time for delivery of the Goods outstanding under the Contract by such period as is reasonable having regard to all the circumstances of the case and as may be agreed in writing between the parties (and the Seller shall be deemed not to be in breach of Contract) provided however that if at the end of such extended delivery it is still not possible to make delivery then again the Seller may give notice in writing to the Buyer cancelling the Seller’s outstanding obligations to deliver Goods under the Contract (and the Seller shall be deemed not to be in breach of Contract) and in which case in no event shall the Seller be liable for any loss or damage whatsoever arising out of such cancellation. The foregoing provisions of this sub-clause are without prejudice to the right of the Seller to recover the price of any Goods that have already been invoiced to the Buyer or the risk in which has passed to the Buyer.
8.3 If the Seller is prevented hindered or delayed from making delivery of any Goods by reason of delay on the part of the Buyer in providing information to the Seller in order to enable the Seller to complete its obligations then in no event shall the Seller be liable for any loss or damage whatsoever arising out of such prevention hindrance or delay.
8.4 If the Seller shall fail to make due delivery or shall make late or short delivery of the Goods or any part thereof for any cause not set out in sub-clause 8(2) or sub-clause 8(3) hereof then in view of the problems of delivery inherent in the industry in no event shall the Seller be liable for any loss or damage whatsoever arising out of such failure to make due delivery or late or short delivery. The foregoing provisions of this subclause are without prejudice to the right of the Seller to recover the price of any Goods that have already been invoiced to the Buyer or the risk in which has passed to the Buyer.
8.5 Without prejudice to the provisions of any of the above sub-clauses if any of the said subclauses shall be held to be invalid under any applicable statute or rule of law it shall to that extent be deemed omitted but if the Seller thereby becomes liable for loss or damage which could otherwise have been excluded such liability shall be limited to and shall not exceed a sum which equals the contract price of that part of the Goods that has not been delivered.
9. LIMITATIONS – UK BUYERS
9.1 This clause shall not apply to contracts which are within the description contained in section 26 of the Unfair Contract Terms Act 1977.
9.2 The Seller will within the Seller’s absolute discretion repair or replace or refund the purchase price of any Goods that the Seller shall be satisfied were defective in material or workmanship at the time of delivery provided that notice has been given to the Seller of such defect within 14 days of the date when by reason of an opportunity to inspect the Goods or otherwise the Buyer could first reasonably have ascertained that such defect existed and provided that the Buyer has not in any way dealt with the Goods as a result in their being in any worse condition than when delivered.
9.3 Insofar as the Seller may have the benefit of any guarantee or warranty given by any manufacturer of the Goods or other third party the Seller will at the request of the Buyer use all reasonable efforts to ensure that insofar as may be practicable the benefit of such guarantee or warranty enures to the Buyer and will at the Buyer’s request execute an assignment of the benefit thereof to the Buyer.
9.4 Where any Goods are delivered that do not comply with the Contract the Buyer shall prior to making any claim for damages or compensation on the Seller afford the Seller a reasonable time and opportunity to act in accordance with sub-clause 9(2) hereof and the Seller shall in any event not be liable to the Buyer for any loss or waste of storage, warehousing, shipping, processing, manufacturing or other space or facility or labour time or effort expended of any like
nature of any other indirect loss.
9.5 Without prejudice to the operation of anyc other conditions herein contained where any Goods are delivered that do not comply with the Contract any liability of the Seller to the Buyer for any loss or expense of whatsoever nature thereby occasioned shall be limited to and shall not exceed a sum equal to the Contract price of that part of the Goods in respect of which the default has been made.
10. PACKAGING AND MARKINGS
10.1 The Buyer warrants that the Goods will not be sold or distributed or otherwise in any way dealt with unless there shall first have been applied or taken all such protective or other packaging, and all such warnings, notices, statements or markings, and all such other precautions of whatsoever nature as may be required by the law of any place where the goods may at any time be or as may be necessary or appropriate to preclude the making of any claim by any person who may use or be affected by the Goods on the grounds of the absence thereof. The Buyer shall indemnify the Seller against all claims, proceedings, costs or expenses which the Seller may sustain by reason of any breach of this warranty.
11. DELIVERY – OVERSEAS BUYERS
11.1 This clause shall apply to contracts which are within the description set out in section 26 of the Unfair Contract Terms Act 1977.
11.2 The Seller will use all reasonable efforts to comply with delivery dates as quoted or agreed but if the Seller shall fail to make delivery or make any late or short delivery of the Goods or any part thereof the Seller shall not be liable to the Buyer for any loss or expense of whatsoever nature thereby occasioned nor shall any delay in delivery entitle the Buyer to cancel the Contract or refuse to accept any Goods.
11.3 Without prejudice to the foregoing if the Seller fails to make delivery or makes late or short delivery of any Goods any liability of the Seller to the Buyer for damages or compensation in respect of any loss, expense of whatsoever nature thereby occasioned shall be limited to and shall not exceed a sum equal to10 percent of the Contract price of that part of the Goods in respect of which any default has been made.
12. LIMITATIONS – OVERSEAS BUYERS
12.1 This clause shall apply to contracts which are within the description contained in section 26 of the Unfair Contract Terms Act 1977.
12.2 The Seller will within the Seller’s absolute discretion repair or replace or refund the purchase price of any Goods that the Seller shall be satisfied were defective in material or workmanship at the time of delivery provided that notice has been given to the Seller of such defect within 7 days of the date when by reason of an opportunity to inspect the Goods or otherwise the Buyer could first reasonably have ascertained that such defect existed and Provided That
a) The Buyer has not in any way dealt with the Goods as to result in their being in any worse condition than when delivered and
b) No claims can be validly made more than two months after delivery
12.3 Except insofar as the same may have been expressly incorporated into Contract in writing (which writing shall be other than and shall not be constituted by any printed form) no warranty, term or condition as to the quality, condition or suitability for any purpose of any Goods shall form any part of this Contract or have any force or effect as collateral thereto and any terms or warranties that might otherwise arise by statute or by implication or law ar hereby expressly excluded.
12.4 Where any Goods are delivered that are not in accordance with the Contract any liability of the Seller to the Buyer for damages or compensation for any loss or expense of whatsoever nature thereby occasioned shall be limited to and shall not exceed a sum equal to 10 percent of that part of the Goods in respect of which the default was made.
12.5 The Seller shall not be liable for any personal injury or death whether or not resultant from any negligence arising directly or indirectly out of any use of the goods sold or any defect or failure therein.
13. FURTHER LIMITATION
13.1 Without prejudice to the effect or operation of any other clause herein contained the aggregate liability of the Seller to the Buyer for any loss or damage of whatsoever nature arising out of any breaches of this contract shall be limited to and shall not exceed a sum which equals the Contract price of the Goods.
13.2 WITHOUT PREJUDICE TO THE EFFECT OR OPERATION OF ANY OTHER CLAUSE OF THESE CONDITIONS:
a) THE SELLER SHALL NOT BE RESPONSIBLE FOR DEFECTS IN THE GOODS CAUSED BY FAIR WEAR AND TEAR, ABNORMAL OR UNSUITABLE CONDITIONS OF STORAGE OR USE OR ANY ACT, NEGLECT OR DEFAULT OF THE BUYER OR OF ANY THIRD PARTY;
b) THE SELLER SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR LIABILITY OF ANY KIND SUFFERED BY ANY THIRD PARTY DIRECTLY OR INDIRECTLY CAUSED BY REPAIRS OR REMEDIAL WORK CARRIED OUT WITHOUT THE SELLER’S PRIOR WRITTEN APPROVAL AND THE BUYER SHALL INDEMNIFY THE SELLER AGAINST ANY AND ALL CLAIMS AND COSTS ARISING OUT OF SUCH CLAIMS TO THE EXTENT THAT SUCH REPAIRS OR REMEDIAL WORK HAVE BEEN PERFORMED BY THE BUYER OR ITS AGENTS;
c) THE SELLER’S AGGREGATE LIABILITY TO THE BUYER WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION OR OTHERWISE SHALL IN NO CIRCUMSTANCE EXCEED THE COST OF THE DEFECTIVE, DAMAGED OR UNDELIVERED GOODS WHICH GIVE RISE TO SUCH LIABILITY AS DETERMINED BY NET PRICE INVOICED TO THE BUYER IN RESPECT OF ANY OCCURRENCE OR SERIES OF OCCURRENCES;
d) TO THE EXTENT PERMITTED BY LAW ALL CONDITIONS WARRANTIES AND REPRESENTATIONS EXPRESSED OR IMPLIED BY STATUTE COMMON LAW OR OTHERWISE IN RELATION TO THE GOODS ARE HEREBY
e) THE SELLER SHALL HAVE NO LIABILITY FOR ANY INDIRECT OR CONSEQUENTIAL LOSSES OR EXPENSES SUFFERED BY THE BUYER, HOWSOEVER CAUSED, AND INCLUDING WITHOUT LIMITATION LOSS OF ANTICIPATED PROFITS, GOODWILL, REPUTATION, BUSINESS RECEIPTS OR CONTRACTS, OR LOSSES OR EXPENSES RESULTING FROM THIRD PARTY CLAIMS.
14.1 Insofar as it may appear to any court, arbitrator or tribunal that any term of these conditions which seeks to impose any restriction or limitation of liability on the part of the Seller to any specified sum or percentage of the price of the goods and to which the Unfair Contract Terms Act 1977 applies does not satisfy the requirement of reasonableness, such restriction or limitation shall not be disregarded or treated as null and void or as having no application but shall be construed as if there were substituted therein such greater minimum specified sum or percentage of the price of the goods as would in the opinion of the court, arbitrator or tribunal be reasonable and shall be given effect accordingly.
15.1 All disputes, differences or questions arising at any time between the parties as to the construction of the contract or in any connected therewith shall be referred to the arbitration of a single arbitrator who shall be agreed between the parties or failing such agreement shall be appointed at the request of either party by the President for the time being of the Law Society. The arbitration shall be in accordance with the Arbitration Act 1950 and any statutory modification or re-enactment thereof for the time being in force.
16. CHOICE OF LAW
16.1 These conditions and any contract of which they form part shall be governed and construed by English Law. The Uniform Laws on International Sales Act 1967 shall not apply.
17.1 None of the rights or obligations of the Buyer under these Conditions may be assigned or transferred in whole or in part without the prior written consent of the Seller.
18.1 The Seller shall be entitled to a general lien on all Goods and property owned by the Buyer in the Seller’s possession (although the Buyer may have paid for the same in full) in satisfaction of the whole or part as the case may be of the unpaid price of any Goods sold and delivered to the Buyer under any contract. The Seller shall be entitled to offset any sum or sums owing to it from the Buyer against any sums owed to the Buyer by the Seller.
19.1 The headings of these Conditions shall not affect the interpretation of these Conditions.
20. EXPORT SALES
20.1 In any case where goods are sold CIF or FOB or on the basis of other international trade terms the meaning given to such terms in the I.C.C. Incoterms (as revised from time to time) shall apply except where inconsistent with any of the provisions contained in these Conditions.
20.2 Unless otherwise agreed the price of any goods sold pursuant to an international supply contract (as defined by Section 26 of the Unfair Contract Terms Act 1977) shall be secured by an irrevocable letter of credit satisfactory to the Seller established by the Buyer in favour of the Seller immediately upon receipt of the Seller’s Order Acceptance form and confirmed by a United Kingdom bank acceptable to the Seller. The letter of credit shall be for the price payable for the goods (together with any tax or duty payable) to the Seller and shall be valid for at least (6) months or such longer period as shall have been estimated by the Seller for delivery. The Seller shall be entitled to payment on presentation to such United Kingdom Bank of the documents specified by the Seller.