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1 Interpretation
1.1 In these Conditions:
‘YOU’ means the consumer who accepts a quotation or orders Goods
from us
‘GOODS’ means the goods (or any parts for them) which we will supply
as specified on the attached order form
‘WE’ means ST1 Limited of 23 Royal Scot Road, Pride Park
Derby, Derbyshire, DE24 8AJ
‘CONDITIONS’ means these standard terms and conditions of sale set
out in this document and includes any special terms and conditions agreed in
writing between us.
‘CONTRACT’ means the contract for the purchase and sale of the Goods
1.2 Where these Conditions refer to a statute this will include any amendment,
re-enactment or extension of that statute.
1.3 The headings in these Conditions are for convenience only.
2 Basis of the sale
2.1 We shall sell and you shall purchase the Goods.
2.2 It is our intention that all terms of the Contract between us are contained
in this document. If you wish to rely on any variation in these terms you should
ensure that such variations are recorded in writing.
2.3 Any error or omission in any information, or document issued by us shall
be subject to correction provided that the correction does not materially affect
the Contract.
3 Orders and specification
3.1 No order submitted by you shall be deemed to be accepted by us unless and
until confirmed in writing by our authorised representative.
3.2 You shall be responsible for ensuring the accuracy of the terms of any order
and specification submitted by you, and for giving us any necessary information
relating to the Goods within a sufficient time to allow us to perform the Contract.
3.3 The quantity, quality, description and specification for the Goods shall
be those set out in our quotation (if accepted by you) or your order (if accepted
by us).
3.4 Samples are only submitted as indicative of the Goods without any guarantee
as to the colour or quality of the Goods. Each Contract is made on the basis
that sales are by description and not by sample, unless otherwise agreed by us
in writing.
3.5 For the avoidance of doubt, if you provide drawings and details to us asking
us to produce from those drawings and details, a specification and/or quote,
then the responsibility to check the accuracy of the specification and/or quote
remains with you.
3.6 Acceptance of such specification and/or quote by you is deemed to be acceptance
of its accuracy and the material quantities suggested. Any additional material
required will be charged to you.
3.7 If the Goods are to be manufactured or processed in accordance with a specification
or design submitted by you, then you will indemnify us against all loss, damages,
costs and expenses awarded against or reasonably and properly incurred by us
in connection with or paid or agreed to be paid by us in proper 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 our use of your specification or design.
3.8 We reserve the right to make any changes in the specification of the Goods
which are required to conform with any statutory or EC requirements which do
not materially affect their quality or performance.
4 Price of the goods
4.1 The price of the Goods shall be our quoted price or, if none is given, the
price listed in our current published price list. All prices quoted are valid
for 30 days only or until acceptance by you if earlier, and if you do not place
an order within this 30 day period the price may be altered by us without giving
notice to you.
4.2.1 After we accept your order we reserve the right, by giving notice to you
at any time before delivery, to increase the price of the Goods to reflect any
increase in the cost of the goods to us, which is due to any factor beyond our
control.
4.2.2 If you receive a notice pursuant to clause 4.2.1 you shall be entitled
to cancel this Agreement without penalty by giving not less than 14 days notice
to us.
4.3 If an Order which has been accepted by us is either cancelled or varied by
you then you will be responsible to pay to us any costs, losses, or expenses
properly and reasonably incurred or suffered by us as a result of the cancellation
or variation. The amount of these costs may be limited if you notify us of the
cancellation or variation as early as possible or we are able to re-sell or re-use
the Goods.
4.4 Where we agree to deliver the Goods otherwise than at our premises, you shall
be liable to pay our charges for such delivery.
4.5 Where the Goods are supplied for export from the United Kingdom, our published
export price list shall apply.
5 Terms of payment
5.1 Subject to any special terms agreed in writing between us, you shall pay
the full price of the Goods before delivery or collection of the Goods.
5.2 If you refuse to accept delivery of the Goods we shall be entitled to recover
the price, notwithstanding that delivery may not have taken place and the legal
ownership in the Goods has not passed to you. If we are able to re-sell or re-use
the Goods then the amount of our claim may be limited.
5.3 If you fail to make any payment when due without a valid and lawful reason
then, without prejudice to any other right or remedy available to us and our
duty to limit our loss, then we shall be entitled to:
5.3.1 cancel the contract or suspend any further deliveries to you;
5.3.2 use any other money you have paid to us
5.3.3 charge you interest (both before and after any judgement) on the amount
unpaid, at the rate of 5 per cent per annum above National Westminster Bank plc
base rate from time to time, until payment in full is made (a part of a month
being treated as a full month for the purpose of calculating interest).
5.4 As a consumer, you have certain statutory rights which may be relied upon
in the event that goods you are sold are defective, or in the event that services
supplied are not carried out with reasonable care and skill. Conditions 4.3,
5.2, 5.3, 6.4 and 8 do not affect these statutory rights. For more information
about your statutory rights you should contact your local Citizen’s Advice
Bureau or Trading Standards Department.
5.5 Receipts for payment will be issued only upon request.
6 Delivery
Your attention is drawn to clauses 6.3, 6.5 and 6.6 below
6.1 Delivery of the Goods shall be made by you collecting the Goods at our premises
at any time after we have notified you that the Goods are ready for collection
or, if some other place for delivery is agreed by us, then by us delivering the
Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only, and we may
deliver the Goods in advance of the quoted delivery date on giving you reasonable
notice.
6.3 Where delivery of the Goods is to be made in bulk, we reserve the right to
deliver up to five per cent more or five per cent less than the quantity ordered,
but will use our reasonable endeavours to deliver any shortfall as soon as possible
to you. You will only pay for those Goods actually delivered and are not obliged
to pay for the extra 5% if you do not accept it.
6.4 If you fail to take delivery of the Goods or fail to give us adequate delivery
instructions (otherwise than by reason of any cause beyond your reasonable control
or by reason of our fault) then, without prejudice to any other right or remedy
available to us, we may:
6.4.1 store the Goods until actual delivery and charge you for the reasonable
costs (including insurance) of storage; or
6.4.2 sell the Goods at the best price readily obtainable and (after deducting
all reasonable storage and selling expenses) account to you for the excess over
the price under the Contract or charge you for any shortfall below the price
under the Contract.
6.5 Off loading of Goods shall be your responsibility and materials will be delivered
as close as possible to the required site. However you are responsible for access
to the site and for movement from the vehicle delivery position to its final
destination.
6.6 In the event of your failure to inform us of impassable private roadways
to the site then either the load will be delivered to the nearest accessible
site point or returned at a later date with an extra charge being incurred by
you.
7 Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to you:
7.1.1 if you are collecting the Goods, at the time when we notify you that the
Goods are available for collection; or
7.1.2 if we are delivering the Goods at the time of delivery or, if you wrongfully
fail to take delivery, the time when we have tendered delivery of the Goods.
For the avoidance of doubt whilst the Goods remain at our premises we do not
exclude our liability for damage to the Goods caused by our negligence.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other
provision of these Conditions, the legal ownership in the Goods shall not pass
to you until we have received in cash or cleared funds payment in full of the
price of the Goods.
7.3 Until such time as the legal ownership in the Goods passes to you:
7.3.1 you shall keep the Goods separate and properly stored, protected and insured
and identified as our property; and
7.3.2 if the Goods are still in existence and have not been resold nor installed
or affixed to your premises, we shall be entitled at any time to require you
to deliver up the Goods to us. If you fail to do so forthwith, we may enter the
premises where the Goods are stored and repossess the Goods with your consent
or that of a third party if either of you have a legitimate interest in the property
or are authorised to consent to such access. If we do not obtain the necessary
consent then appropriate court action will be taken.
7.4 You shall not be entitled to pledge or in any way charge by way of security
for any indebtedness any of the Goods which remain within our ownership,
8 Warranties and liability
This clause does not affect your statutory rights referred to in clause 5.4
8.1 Whilst we make every effort to supply Goods strictly in accordance with the
quality or specification ordered by you, we shall be under no liability in respect
of:
8.1.1 natural geological variations, natural formation characteristics, colour
and marking variations;
8.1.2 any defect in the Goods directly arising from any drawing, design or specification
supplied or accepted by you;
8.1.3 any defect arising from fair wear and tear, wilful damage, your negligence,
abnormal working condition, failure to follow our instructions (whether oral
or in writing), misuse or alteration or repair of the Goods without our approval;
8.2 Our liability to you for death or injury resulting from our own or our employees’,
agents’ or sub-contractor’s negligence shall not be limited
8.3 We shall only be liable for losses that are foreseeable.
8.4 We shall not be liable to you or be deemed to be in breach of the Contract
by reason of any delay in performing, or any failure to perform, any of our obligations
in relation to the Goods, if the delay or failure was due to Act of God, your
act of default or any cause beyond our reasonable control.
9 General
9.1 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 notice.
9.2 No waiver by us of any breach of the Contract by you shall be considered
as a waiver of any subsequent breach of the same or any other provision.
9.3 If any provision of these Conditions is held by any competent authority to
be invalid or un-enforceable 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.
9.4 The Contract shall be governed by the laws of England, and you agree to submit
to the non-exclusive jurisdiction of the English courts.
1 Interpretation
1.1 In these Conditions:
‘BUYER’ means the person who accepts a quotation of the ‘Seller’ for
the sale of the Goods or whose order for the Goods is accepted by the Seller
‘GOODS’ means the goods (including any instalment of the goods
or any parts for them) (which the Seller is to supply in accordance with these
Conditions) specified on the order form to which these conditions are attached
‘SELLER’ means ST1 Limited of 23 Royal Scot Road, Pride Park
Derby, Derbyshire, DE24 8AJ
‘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 Buyer and the Seller
‘CONTRACT’ means the contract for the purchase
and sale of the Goods
‘WRITING’ includes telex, cable, facsimile
transmission, electronic mail and comparable means of communication
1.2 Any reference in these Conditions to any provision of
a statute shall be constructed 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 Seller shall sell and the Buyer shall purchase the
Goods in accordance with any written quotation of the Seller
which is accepted by the Buyer, or any written order of the
Buyer which is accepted by the Seller, subject in either
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 Buyer.
2.2 No variation to these Conditions shall be binding unless
agreed in writing between the authorised representatives
of the Buyer and the Seller.
2.3 The Seller’s employees or agents are not authorised
to make any representations concerning the Goods unless confirmed
by the Seller in writing. In entering into the Contract the
Buyer acknowledges that it does not rely on any such representations
which are not so confirmed.
2.4 Any advice given by the Seller or its agents to the
Buyer or its employees or agents as to the storage, application
or use of the Goods which is not confirmed in writing by
the Seller is followed or acted upon entirely at the Buyer’s
own risk, and accordingly the Seller shall not be liable
for any such advice which is not so confirmed.
2.5 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 Seller shall be subject to correction without any
liability on the part of the Seller.
3 Orders and specification
3.1 No order submitted by the Buyer shall be deemed to be
accepted by the Seller unless and until confirmed in writing
by the Seller’s authorised representative.
3.2 The Buyer shall be responsible to the Seller for ensuring
the accuracy of the terms of any order (including any applicable
specification) submitted by the Buyer, and for giving the
Seller any necessary information relating to the Goods within
a sufficient time to enable the Seller 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 Seller’s
quotation (if accepted by the Buyer) or the Buyer’s
order (if accepted by the Seller).
3.4 Samples are only submitted as indicative of the product
quoted for without guarantee as to the colour or quality
of the bulk. Each Contract is made on the basis that sales
are by description and not by sample, unless otherwise agreed
specifically by the Seller in writing.
3.5 For the avoidance of doubt, if the Buyer provides drawings
and details to the Seller requesting the Seller to produce
from those drawings and details, a specification and/or quote
then the responsibility to check the accuracy of the specification
and/or quote remains with the Buyer. Acceptance of such specification
and/or quote by the Buyer is deemed to be acceptance of the
accuracy of such specification and/or order and the material
quantities suggested. Any additional material required will
be charged to the Buyer.
3.6 If the Goods are to be manufactured or any process is
to be applied to the Goods by the Seller in accordance with
a specification or design submitted by the Buyer, the Buyer
shall indemnify the Seller against all loss, damages, costs
and expenses awarded against or incurred by the Seller in
connection with or paid or agreed to be paid by the Seller
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
Seller’s use of the Buyer’s specification or
design.
3.7 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 to be supplied to the Seller’s specification,
which do not materially affect their quality or performance.
3.8 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 terms that the Buyer shall indemnify
the Seller 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 Seller as a
result of the cancellation.
4 Price of the goods
4.1 The price of the goods shall be the Seller’s quoted
price or, where no price has been quoted (or a quoted price
is no longer valid), the price listed in the Seller’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 Seller’s published export price
list shall apply. All prices are valid for 30 days only or
until earlier acceptance by the Buyer, after which time they
may be altered by the Seller without giving notice to the
Buyer.
4.2 The Seller reserves the right, by giving notice to the
Buyer at any time before delivery, to increase the price
of the Goods to reflect any increase in the cost to the Seller
which is due to any factor beyond the control of the Seller
(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 Buyer, or an delay
caused by any instructions of the Buyer or failure of the
Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation
or in any price list of the Seller, and unless otherwise
agreed in writing between the Buyer and the Seller, all prices
are given by the Seller on an ex works basis, and where the
Seller agrees to deliver the Goods otherwise than at the
Seller’s premises, the Buyer shall be liable to pay
the Seller’s charges for such delivery.
4.4 The price is exclusive of any applicable value added
tax, which the Buyer shall be additionally liable to pay
to the Seller.
4.5 The cost of pallets and returnable containers will be
charged to the Buyer in addition to the price of the Goods,
but full credit will be given to the Buyer provided they
are returned undamaged to the Seller before the due payment
date.
5 Terms of Payment
5.1 Subject to any special terms agreed in writing between
the Buyer and the Seller, the Buyer shall pay the price of
the Goods (without deduction)) before delivery of the goods
or if the goods are to be collected by the Buyer the Buyer
shall pay the price after the Seller has notified the Buyer
that the goods are ready for collection but before the Goods
are actually collected.
5.2 The Seller 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 Buyer. 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 If the Buyer fails to make any payment on the due date
then, without prejudice to any other right or remedy available
to the Seller, the Seller shall be entitled to:
5.3.1 cancel the contract or suspend any further deliveries
to the Buyer;
5.3.2 appropriate any payment made by the Buyer to such
of the Goods (or the goods supplied under any other contract
between the Buyer and the Seller) as the Seller may think
fit (notwithstanding any purported appropriation by the Buyer);
and
5.3.3 charge the Buyer interest (both before and after any
judgement) on the amount unpaid at the rate of 5 per cent
per annum above National Westminster Bank plc base rate from
time to time, until payment in full is made (a part of a
month being treated as a full month for the purpose of calculating
interest).
6 Delivery
6.1 Delivery of the Goods shall be made by the Buyer collecting
the Goods at the Seller’s premises at any time after
the Seller has notified the Buyer that the Goods are ready
for collection or, if some other place for delivery is agreed
by the Seller, by the Seller delivering the Goods to that
place. Where the Seller agrees to deliver the goods otherwise
than at the Seller’s premises, the Seller shall be
under no obligation under Section 32 (2) of the Sale of Goods
Act 1979.
6.2 Any dates quoted for delivery of the Goods are approximate
only and the Seller 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 Seller in writing. The Goods may be delivered by the
Seller in advance of the quoted delivery date upon giving
reasonable notice to the Buyer.
6.3 Where delivery of the Goods is to be made by the Seller
in bulk, the Seller reserves the right to deliver up to five
per cent more or five per cent 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 Seller to deliver any one or more of the instalments
in accordance with these Conditions or any claim by the Buyer
in respect of any one or more instalments shall not entitle
the Buyer to treat the Contract as a whole as repudiated.
6.5 If the Seller fails to deliver the Goods (or any instalment)
for any reason other than any cause beyond the Seller’s
reasonable control or the Buyer’s fault, and the Seller
is accordingly liable to the Buyer, the Seller’s liability
shall be limited to the excess (if any) of the cost to the
Buyer (in the cheapest available market) of similar goods
to replace those not delivered over the price of the Goods.
6.6 If the Buyer fails to take delivery of the Goods or
fails to give the Seller adequate delivery instructions at
the time stated for the delivery (otherwise than by reason
of any cause beyond the Buyer’s reasonable control
or by reason of the Seller’s fault) then, without prejudice
to any other right or remedy available to the Seller, the
Seller may:
6.6.1 store the Goods until actual delivery and charge the
Buyer 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 Buyer for the excess over the price under
the Contract or charge the Buyer for any shortfall below
the price under the Contract.
6.7 Off loading of Goods shall be the Buyer’s responsibility
and materials will be delivered as close as possible to the
required site. However the Buyer is responsible for access
to the site and for movement from the vehicle delivery position
to its final destination.
6.8 In the event of the Buyer failing to inform the Seller
of impassable private roadways to the site then either the
load will be delivered to the nearest accessible site point
or returned at a later date with an extra charge being incurred
by the Buyer.
7 Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to
the Buyer:
7.1.1 in the case of the Goods to be delivered at the Seller’s
premises, at the time when the Seller notifies the Buyer
that the Goods are available for collection; or
7.1.2 in the case of Goods to be delivered otherwise than
at the Seller’s premises, at the time of delivery or,
if the Buyer wrongfully fails to take delivery of the Goods,
the time when the Seller has tendered delivery of the Goods.
7.2 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 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.
7.3 Until such time as the property in the Goods passes to
the Buyer, the Buyer shall hold the Goods as the Seller’s
fiduciary agent or bailee, and shall keep the Goods separate
from those of the Buyer and third parties and properly stored,
protected and insured and identified as the Seller’s
property, but shall be entitled to resell or use the Goods
in the ordinary course of its business.
7.4 Until such time as the property in the Goods passes
to the Buyer (and provided the Goods are still in existence
and have not been resold), 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.
7.5 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 other right or remedy of
the Seller) forthwith become due and payable.
8 Warranties and liability
8.1 Whilst the Seller makes every effort to supply materials
or goods strictly in accordance with the quality or specification
ordered by the Buyer:
8.1.1 the Seller shall be under no liability in respect
of natural geological variations, natural formation characteristics,
colour and marking variations;
8.1.2 the Seller shall be under no liability in respect
of any defect in the Goods arising from any drawing, design
or specification supplied or accepted by the Buyer;
8.1.3 the Seller 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 Seller’s instructions (whether oral or in writing),
misuse or alteration or repair of the Goods without the Seller’s
approval;
8.1.4 the Seller 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;
8.1.5 the above warranty does not extend to materials or
goods not manufactured, produced or quarried by the Seller,
in respect of which the Buyer shall only be entitled to the
benefit of any such warranty or guarantee as is given by
the manufacturer, producer or quarry to the Seller.
8.2 The Seller gives no undertaking that the Goods supplied
are fit for any particular purpose and the Buyer having greater
knowledge of their own requirements relies entirely on their
own skill and judgement in evaluating the suitability of
the goods for the purpose.
8.3 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.
8.4 Where the Goods are sold under a consumer transaction
(as defined by the Consumer Transaction [Restrictions on
Statements] Order 1976) the statutory rights of the Buyer
are not affected by these Conditions.
8.5 Any claim by the Buyer which is based on any defect
in the quality or condition of the Goods or their failure
to correspond with specifications shall (whether or not delivery
is refused by the Buyer) be notified to the Seller within
three 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 Buyer does not notify
the Seller accordingly, the Buyer shall not be entitled to
reject the Goods and the Seller shall have no liability for
such defect or failure, and the Buyer shall be bound to pay
the price as if the Goods had been delivered in accordance
with the Contract. In no event shall the Buyer be entitled
to reject the Goods on the basis of any defect or failure
which is so slight that it would be unreasonable for the
Buyer to reject them.
8.6 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 Seller in accordance with these Conditions, the Seller
shall be entitled to replace the Goods (or the part in question)
free of charge or, at the Seller’s sole discretion,
refund to the Buyer the price of the Goods (or a proportionate
part of the price), but the Seller shall have no further
liability to the Buyer.
8.7 Except in respect of death or personal injury caused
by the Seller’s negligence, the Seller shall not be
liable to the Buyer 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 profit or otherwise),
costs, expenses or other claims for compensation whatsoever
(whether caused by the negligence of the Seller, 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
Buyer, and the entire liability of the Seller under or in
connection with the supply of the Goods or their use or resale
by the Buyer, and the entire liability of the Seller under
or in connection with the Contract shall not exceed the price
of the Goods, except as expressly provided in these Conditions.
8.8 The Seller shall not be liable to the Buyer or be deemed
in breach of the Contract by reason of any delay in performing,
or any failure to perform, any of the Seller’s obligations
in relation to the Goods, if the delay or failure was due
to any cause beyond the Seller’s reasonable control.
Without prejudice to the generality of the foregoing, the
following shall be regarded as causes beyond the Seller’s
reasonable control:
8.8.1 Act of God, explosion, flood, tempest, fire or accident;
8.8.2 war or threat of war, sabotage, insurrection, civil
disturbance or requisition;
8.8.3 acts, restrictions, regulations, by-laws, prohibitions
or measures of any kind on the part of any government, parliamentary
or local authority;
8.8.4 import or export regulations or embargoes;
8.8.5 strikes, lock-out or other industrial actions or trade
disputes (whether involving employees of the Seller or of
a third party);
8.8.6 difficulties in obtaining raw materials, labour, fuel,
parts or machinery;
8.8.7 power failure or breakdown in machinery.
9 Indemnity
9.1 If any claim is made against the Buyer that the Goods
infringe or that their use or resale infringes the patent,
copyright, design trade mark or other industrial or intellectual
property rights of any other person, then unless the claim
arises from the use of any drawing, design or specification
supplied by the Buyer, the Seller shall indemnify the Buyer
against all loss, damages, costs and expenses awarded against
or incurred by the Buyer in settlement of the claim provided
that:
9.1.1 the Seller is given full control of any proceedings
or negotiations in connection with any such claim;
9.1.2 the Buyer shall give the Seller all reasonable assistance
for the purposes of any such proceedings or negotiations;
9.1.3 except pursuant to a final award, the Buyer shall
not pay or accept any such claim, or compromise any such
proceedings without the consent of the Seller (which shall
not be unreasonably withheld);
9.1.4 the Buyer shall do nothing that would or might vitiate
any policy of insurance or insurance cover which the Buyer
may have in relation to such infringement, and this indemnity
shall not apply to the extent that the Buyer may have in
relation to such infringement, and this indemnity shall not
apply to the extent that the Buyer recovers any sums under
any such policy or cover (which the Buyer shall use its best
endeavours to do);
9.1.5 the Seller shall be entitled to the benefit of, and
the Buyer shall accordingly account to the Seller for, all
damages and costs (if any) awarded in favour of the Buyer
which are payable by, or agreed with the consent of the Buyer
(which consent shall not be unreasonably withheld) to be
paid by, any other party in respect of any such claim; and
9.1.6 without prejudice to any duty of the Buyer at common
law, the Seller shall be entitled to require the Buyer to
take such steps as the Seller may reasonably require to mitigate
or reduce any such loss, damages, costs or expenses for which
the Seller is liable to indemnify the Buyer under this clause.
10 Insolvency of Buyer
10.1 This cause applies if:
10.1.1 the Buyer 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 amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession, or a receiver is
appointed, of any of the property or assets of the Buyer;
or
10.1.3 the Buyer ceases, or threatens to cease, to carry
on business; or
10.1.4 the Seller reasonably apprehends that any of the
events mentioned above is about to occur in relation to the
Buyer and notifies the Buyer accordingly.
10.2 If this clause applies then, without prejudice to any
other right or remedy available to the Seller, the Seller
shall be entitled to cancel the Contract or suspend any further
deliveries under the Contract without any liability to the
Buyer, 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.
11 Export terms
11.1 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 of expression which is defined in or given
a particular meaning by the provision 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.
11.2 Where the Goods are supplied for export from the United
Kingdom, the provisions of this clause 11 shall (subject
to any special terms agreed in writing between the Buyer
and the Seller) apply notwithstanding any other provision
of these Conditions.
11.3 The Buyer 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.
11.4 Unless otherwise agreed in writing between the Buyer
and the Seller, the Goods shall be delivered fob the air
or sea port of shipment and the Seller shall be under no
obligation to give notice under section 32(3) of the Sale
of Goods Act 1979.
11.5 The Buyer shall be responsible for arranging the testing
and inspection of the Goods at the Seller’s premises
before shipment. The Seller 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.
11.6 Payment of all amounts due to the Seller shall be made
in accordance with these terms and conditions unless expressly
agreed in writing between the Buyer and the Seller.
11.7 The Buyer undertakes not to offer the Goods for resale
in any other country, or to sell the Goods to any person
if the Buyer knows or has reason to believe that person intends
to resell the Goods in any such country.
12 General
12.1 Where the Seller is a member of a group of companies
in common ownership, the Seller 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 Seller.
12.2 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
principle 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.
12.3 No waiver by the Seller or any breach of the Contract
by the Buyer shall be considered as a waiver of any subsequent
breach of the same or any other provision.
12.4 If any provision of these Conditions is held by any
competent authority to be invalid or un-enforcable 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.
12.5 Any dispute arising 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 Institute of Arbitrators.
12.6 The Contract shall be governed by the laws of England
and the Buyer agrees to submit to the non-exclusive jurisdiction
of the English courts.
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