1.1 Any quotation given by P Pritchard Sheet Metal Ltd (Company No. 03745820) (“the Company”) for the sale of goods and/or supply of services is an invitation to the buyer (“the Buyer”) to make an offer. No order placed by the Buyer with the Company pursuant to a quotation or otherwise shall be binding on the Company unless and until it is accepted in writing or the goods are dispatched or the work is commenced.
1.2 The contract of sale (“the Contract”) shall be concluded by the issue of the Company’s acceptance of order form or despatch note or delivery note or invoice containing the terms herein (“the Terms”). The Buyer’s terms and conditions are hereby expressly excluded and any representative of the Buyer is deemed to have authority to contract on the Terms.
1.3 No alteration or variation to the Terms shall be binding unless agreed and made in writing by an authorised officer of the Company. The Terms will prevail in the event of conflict between the Terms and any other terms or conditions.
1.4 Any representation recommendation or warranty howsoever made or given prior to the Contract is hereby expressly excluded. All catalogues specifications, drawings, descriptions, illustrations and price lists of the Company are intended only to present a general idea of the goods or services described.
2.1 The Buyer shall be responsible to the Company for ensuring the accuracy of the terms of any order which shall include any specification and the Buyer shall also be responsible for giving the Company any necessary information relating to the goods within a sufficient time to enable the Company to perform its obligations under the Contract.
2.2 If the goods are to be manufactured or any process is to be applied to the goods by the Company in accordance with the Buyer’s specification, the Buyer agrees to and shall indemnify the Company against all loss damages costs and expenses awarded against or incurred by the Company in connection with any claim for infringement of any patent copyright design trademark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Buyer’s specification.
2.3 The Company reserves the right to make any changes in the specification of the goods which are required to confirm with any applicable statute.
2.4 No Contract may be cancelled by the Buyer except with the Company’s written agreement and in any event the Buyer 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 the cancellation.
3.1 Prices are exclusive of VAT transport and packing.
3.2 The Company has the right to vary its prices without notice to the Buyer and the price payable by the Buyer shall be the price prevailing at the date of delivery as set out in clause 4 herein.
3.3 Unless otherwise agreed in writing all accounts must be paid within 30 days of invoice dates (“the Payment Date”).
3.4 The Buyer’s default in payment by the Payment Date shall entitle the Company at its absolute discretion to implement any one or combination of the following:
(a) demand immediate payment for all goods and/or services it has supplied to the Buyer; and
(b) demand immediate payment of all invoices rendered to the Buyer whether or not due; and
(c) cancel all outstanding orders placed by the Buyer; and (d) enter the Buyer’s premises for the purpose of recovering and reselling the goods. The provisions set out in this clause are without prejudice to any other right or remedy available to the Company.
3.5 After the Payment Date the Buyer shall pay the sum invoiced and interest on that sum and interest on all other outstanding sums at the rate allowed by the Late Payment of Commercial Debts Act 1998.
3.6 The Buyer shall not be entitled to withhold or set-off payment for goods delivered or work done for any reason whatsoever.
4.1 The delivery address shall be the address set out in the Buyer’s order (“the Delivery Address”).
4.2 Delivery of the goods shall take place when the goods arrive at the Delivery Address. The Buyer shall accept delivery of the goods when tendered at the Delivery Address. Delivery of the services shall commence immediately upon the provision of the services at the Delivery Address. The Buyer shall accept the work produced by the services upon its completion.
4.3 Alternatively, delivery of the goods shall take place when the Buyer collects the goods from the Company’s premises or from an address given to the Buyer by the Company and at any time after the Company has notified the Buyer that the goods are ready for collection.
4.4 At the option of the Company goods sold to the Buyer may be delivered in two or more instalments and each instalment shall be deemed to form a separate and discrete contract and shall be payable as such. Any failure to deliver or the defective delivery of any one instalment shall not constitute a breach of Contract in respect of other instalments.
4.5 Any date given in the Contract for dispatch or delivery of goods and/or for the completion of services shall be estimates of expectation only and shall not be binding in the absence of the Company’s express written provision to this effect.
4.6 Late delivery of goods and/or completion of services (as the case may be) shall not entitle the Buyer to do any of the following:
(a) Reject the goods or services (as the case may be).
(b) Terminate the Contract.
(c) Withhold payment.
(d) Claim compensation for such failure or for any consequential loss or damage resulting therefrom.
4.7 If at the date on which the Company is ready to dispatch or deliver the goods or provide the services (as the case may be) the Buyer delays and/or prevents delivery for any reason whatsoever the Company may present its invoices for full settlement on that date (“the Immediate Payment Invoices”). In default of payment of the Immediate Payment Invoices, the Company is entitled to:
(a) demand payment of all outstanding balances whether or not due and/or
(b) to cancel all outstanding orders placed by the Buyer. The provisions set out in this clause are without prejudice to any other right or remedy available to the Company.
4.8 If the Buyer does not accept the goods and/or services in the manner set out in clause 4.2 and 4.3 herein, the Buyer shall pay to the Company an amount equivalent to:
(a) what the Buyer would be liable to pay for reasonable storage charges for those goods for the period of the delay and
(b) the full cost of any additional handling caused by the delay and
(c) the full cost of any additional transportation caused by the delay.
4.9 If the Buyer does not accept the goods within 30 days of the date on which the Company is ready to dispatch the goods the Company shall be entitled to:
(a) immediately cancel the Buyer’s order and/or
(b) immediately dispose of the goods in a manner it elects. Thereupon, the Buyer shall forthwith pay the Company compensation for its loss of profit on the Buyer’s order in addition to any other sums due to the Company under the Terms.
4.10 Claims in respect of non-delivery of goods must be made as soon as possible and in any event within 7 days of the Company’s invoice.
5.1 The risk in respect of all goods sold under the Contract shall pass to the Buyer upon delivery of the goods by the Company, its servants or agents at the address nominated by the Buyer in the order and before unloading.
5.2 Title to the goods in this or any other Contract shall remain with the Company until the Company has received payment in full for all goods and/or services it has supplied to the Buyer and no other amounts are owed by the Buyer in respect of other goods and/or services the Company has supplied to it. Payment in full excludes all payments made by cheque pending both:
(a) clearance of the cheque and
(b) receipt of the funds in the Company’s account.
5.3 Until the Buyer has paid the Company in full for all goods and/or services supplied (whether in this or any other contract between the Company and the Buyer) the Buyer shall store the Company’s goods in such a way that they can be readily identified as being the Company’s property and are separate from other goods in the Buyer’s custody, possession and control. On request from the Company the Buyer shall forthwith inform the Company of the precise location of each one of its goods supplied, by providing the Company with a written schedule of
(a) the places where the goods are stored and
(b) the serial number of the goods where applicable.
The Buyer will fax this information to the Company within 7 days of its request. In default, the Buyer agrees that the provisions of clauses 5.4(a) and 5.5 shall apply.
5.4 The Buyer may sell the goods as the Company’s agent in the normal course of its business and it may pass title to its customer being a bona fide purchaser for value without notice of the Company’s rights on the following conditions:
(a) The Company may at any time revoke the Buyer’s power of sale; and
(b) The Buyer’s power of sale shall automatically cease on the occurrence of any one or combination of the circumstances set out in clause 9.1; and
(c) The Buyer shall immediately notify the Company of any attachment of the gods or actions by third parties which may infringe the Company’s title to the goods.
5.5 Upon determination of the Buyer’s power of sale the Company shall be entitled by itself its servants or agents to enter upon any of the Buyer’s premises for the purpose of removing or repossessing goods in the Buyer’s custody and control.
5.6 Upon determination of the Buyer’s power of sale the Buyer either by its officers representatives or agents shall allow the Company access to its premises for the purpose of removing or repossessing the goods in its possession custody or control.
5.7 Where the Buyer has attached or incorporated goods supplied by the Company to other goods or has altered the goods, ownership of the goods shall not pass to the Buyer so long as the goods remain identifiable and when attached to or incorporated in other goods can be detached or removed.
6.1 If the Contract is for and/or includes services to be provided by the Company whether of installation, commissioning, repair, rectification or improvement, then in the absence of written agreement to the contrary, the following provisions shall apply:
(a) The Company shall provide the contracted services during it normal working hours.
(b) If the work is to be carried out at the Buyer’s premises or on the Buyer’s request at the premises of any other party then the Buyer shall undertake to provide or to procure the provision of:
6.2 The Buyer shall indemnify the Company in full for any expense it incurs by reason of the Buyer’s breach or failure to perform (whether in full or in part) any of its obligations in clause 6.1.
7.1 The guarantee period shall be 12 months from the date of the invoice (“the Guarantee Period”).
7.2 During the Guarantee Period the Company shall remedy any defects in the goods arising out of defective materials and/or workmanship on the strict condition that upon discovering a defect(s) the Buyer shall give immediate notice both verbally and in writing to the Company.
7.3 Immediately after giving such notice the Buyer shall return the allegedly defective goods or any part thereof to the Company at the Buyer’s risk and expense.
7.4 The Company shall inspect the allegedly defective goods and at its election shall
(a) repair or replace the goods and/or services within a reasonable period of its receipt of the same;
alternatively and only if the Buyer has paid for the allegedly defective goods and/or services in full, the Company shall
(b) refund to the Buyer the invoiced price of such goods and/or services.
In implementing option (b) the Company shall not have any further liability for any consequential or other damages arising and the guarantee provisions clause 7.1 shall not apply.
7.5 The Company shall have no liability whatsoever if defects have been caused by misuse, neglect, misapplication, improper storage, installation or handling, or other fault of the Buyer.
7.6 The Company shall endeavour to supply products suitable for the Buyer’s requirements but shall not be liable for any failure of a product where no or incomplete technical or other information as to its application or usage has been supplied to it.
7.7 The Company shall be under no liability in respect of any defect in the goods and/or services arising from any drawing, design, or specification supplied by the Buyer.
7.8 The Guarantee Period set out in clause 7.1 shall not extend to parts materials or equipment which the Company has not manufactured and in respect of which the Buyer shall only be entitled to the benefit of any warranty or guarantee the Company has received for these items from the manufacturer of the same.
7.9 Nothing in these conditions limits the Company’s liability for personal injury or death arising from the negligence of the Company its representatives or its employees.
7.10 Save as set out in these conditions the Company shall not be liable for any claim or claims for direct or indirect consequential or incidental injury loss or damage made by the Buyer against the Company whether in contract or tort arising out of or in connection with any defect in the goods or work or any act omission neglect or default (whether or not the same constitutes a fundamental breach of the Contract) of the Company its servants or agents in performance of the Contract.
7.11 The Buyer agrees and accepts that the Company’s total liability for any goods or services which are defective shall be as set out in the conditions and that such provisions are complete and reasonable.
7.12 Subject to express provision in the terms and except where goods and/or services are sold to a person dealing as a consumer as defined by 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.
7.13 Except in respect of death or personal injury caused by the Company’s negligence the Company shall not be liable to the Buyer by reason of any representation (unless fraudulent or any implied warranty, condition or other term of any duty at common law or under the express terms of the Contract for loss of profit or for any indirect special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever which arise out of or in connection with the supply of the goods and/or services or their use or re-sale by the Buyer and the entire liability of the Company under or in connection with the Contract shall not exceed the price of the goods and/or services except as expressly set out in the Terms).
8.1 The copyright subsisting or which subsequently subsists in all documents, drawings, specifications, design programs or any other material prepared by the Company in respect of the goods and/or the services provided shall belong to the Company absolutely and shall not be reproduced or disclosed or used in the original or translated form by the Buyer without the Company’s written consent.
8.2 The Buyer shall indemnify the Company against all and any liabilities claims and costs incurred by or made against the Company as a direct or indirect result of carrying out any work required to be done on or to the goods in accordance with the Buyer’s requirements or specifications which involve any infringement or alleged infringement of any rights of any third party.
9.1 If the Buyer, being a company:
(a) has a petition presented for its winding up; or
(b) passes a resolution for voluntary winding up; or
(c) enters into a voluntary arrangement with its creditors; or
(d) becomes subject to an administration order; or
(e) has a receiver appointed of all or any of its assets; or
if the buyer being an individual or firm:
(f) becomes bankrupt or insolvent; or
(g) enters into a voluntary agreement with creditors
then the Company shall be entitled to (a) treat the Contract as being at an end and/or (b) shall be entitled to suspend any further deliveries under the contract or any other contract with the Buyer and (c) the price for all goods and/or services provided to the Buyer shall thereupon become immediately due and payable regardless of any previous arrangement to the contrary and the provisions of clauses 5.4(b) and 5.5 and 5.6 shall apply.
10.1 The Company shall be under no liability if it is unable to perform a Contract of sale for goods and/or services for any reason which is beyond its control. Such reasons shall include but shall not be limited to an Act of God, fire, inclement or exception weather conditions, official or unofficial industrial action, hostilities, shortage of labour, shortage of materials, failure of power or other supplies, governmental orders or intervention by any other cause whatsoever of an unexpected and exceptional nature.
10.2 If the circumstances set out in clause 10.1 shall continue for a period exceeding 3 months the Company may terminate the Contract without any liability to the Buyer whatsoever.
11.1 The waiver by the Company of any breach of any term set out in the Terms shall not prevent the subsequent enforcement of that term and shall not be deemed a waiver of any subsequent breach.
12.1 If any provision of the Terms is held by any Court Tribunal or other competent authority to be illegal invalid void voidable unreasonable or unenforceable in whole or in part it shall to the extent of such illegality invalidity voidness voidability unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of the provisions in question shall continue in full force and effect. The parties shall co-operate and in good faith amend the unenforceable provisions in terms of the original intention of the parties and as is consistent and complies with the governing law.
12.2 The titled herein shall not be taken into account in the construction of the Terms.
12.3 Any notice required or permitted to be given by either party under the Terms shall be in writing addressed to the other party at its principle place of business or such other address as may at the relevant time have been notified to the other party pursuant to the Terms.
12.4 The parties to the Contract do not intend that any term of the Contract will be enforceable by virtue of the Contract (Rights of Third Parties Act 1999) by any person that is not a party to it.
12.5 The Terms and any Order constitute the entire agreement between the Company and the Buyer save in the case of fraud.
12.6 The Contract shall be governed by the laws of England and Wales and the parties submit to the non-exclusive jurisdiction of the Courts of England and Wales.