1.1 The Supplier’s quotations are not binding upon the Supplier and a contract (“the contract”) will only come into being upon acceptance by the Supplier of the Order, (on the Supplier’s written Order Acknowledgement form), and the following terms shall be deemed incorporated in the contract.
1.2 The contract will be subject to these conditions. All terms and conditions appearing or referred to in the Order or otherwise stipulated by the Buyer shall have no effect. Any variation of the contract must be confirmed in writing by the Supplier.
In these conditions, unless the context requires otherwise:
“Supplier” means Wincro Metal Industries Limited (company No. 2484337) whose registered office is at 3 Fife Street, Wincobank, Sheffield S9 1NJ; and any subsidiary of the Supplier by which the Goods are sold;
“Buyer” means the person, firm, company or body purchasing the Goods from the Supplier, or the Buyer’s personal legal representatives, successors or assigns;
“Goods” means the subject matter of the contract including (but not limited to) raw materials, finished or semi-finished materials or articles specified in the quotation, and whether one or a number of items whether or not identical or similar.
“Order” means a purchase order in respect of the Goods issued by the Buyer to the Supplier, either on the Buyer’s official purchase order form, (whether despatched to the Supplier by post or by facsimile, together with all documents referred to in it), or placed verbally over the telephone.
“Site” means the place of delivery for the Goods specified in the Order from the Buyer.
“Services” means work and/or services to be performed by the Supplier for the Buyer pursuant to the Order.
“The Specification” means the description (if any) of the Goods referred to in the quotation, and all designs, drawings, descriptive matters, weights, dimensions and matters referred to therein or issued to the Buyer by the Supplier in connection therewith.
3.1 The price will remain unaltered for 21 days from the date of the quotation unless withdrawn by the Supplier before the Buyer has submitted the Order.
3.2 The price does not include Value Added Tax.
3.3 The price is based on the cost to the Supplier of raw materials (together with any alloy surcharge), fuel and power, transport and labour and all other costs at the date of the quotation. If at the date of despatch of the Goods from the Supplier’s works there has been any increase in all or any of such costs, the price payable for the Goods may at the request of the Supplier be increased accordingly.
3.4 The price is based on the quantities specified in the quotation and will be subject to revision if the quantities ordered are at variance therewith. The price may be subject to increase in the light of any Act of Parliament, Statutory Instrument, Rule or Order relating to the Goods or to materials forming a part of the Goods.
3.5 Where the price for the Goods is varied in accordance with sub-clauses 3.3 or 3.4 above, the price as varied shall be binding on both parties and shall not give either party any option of cancellation.
3.6 Quotations in a currency other than sterling are based on the rate of exchange at the time of quoting and unless otherwise stated the price may be subject to revision up or down if any different rate of exchange is ruling at the date of invoice.
4. LIMITS OF QUOTATION
Only the Goods and the work specified in the quotation will be supplied or performed by the Supplier.
5. SPECIFICATIONS AND STATEMENTS
5.1 The specifications are approximate only and whilst every care is taken by the supplier to ensure their accuracy no warranty is given to the Buyer in respect thereof.
5.2 No statement to the Buyer whether orally or in writing concerning the Goods or their performance save as herein contained shall form part of the contract.
Due to licensing and other contractual arrangements with third parties affecting the Supplier’s Goods, Goods shall not be exported from the country in which they were first delivered without the consent of the Supplier which shall not be unreasonably withheld.
7. TOLERANCES & TESTING
7.1 If the Buyer requires any of the Goods to be tested before despatch arrangements must be made with the Supplier when the Order is placed. The standard of testing required must be specified at the time of the Order and the cost of the test must be paid for by the Buyer. The Buyer will be given 7 days notice of the date, time and place of the test and if the Buyer fails to attend then the Supplier may proceed with the test in the Buyer’s absence which test shall be deemed to have been made in the Buyer’s presence.
7.2 If, due to the Buyer’s request for a test of the Goods, the Buyer has not stipulated the site then the Supplier will store the Goods at the Buyer’s expense and risk until such time as the Supplier is given sufficient information to enable him to despatch the Goods but in any event the price shall be payable as though the Goods had been despatched at the date of the test.
7.3 Gauges, weights, chemical composition and analysis, quantities and sizes will so far as possible be adhered to but reasonable excesses and deficiencies thereof shall be accepted by the Buyer, who shall not be entitled to reject the Goods or to require replacement of any Goods on the ground that they are not precisely as specified.
All samples requested by the Buyer will be paid for by the Buyer unless returned to the Supplier carriage paid within three months of the date of despatch by the Supplier.
The Buyer shall indemnify the Supplier against all actions, costs, (including the cost of defending any legal proceedings) claims, proceedings, accounts and damages in respect of any patent, registered or unregistered design, design right, copyright, trademark or other industrial or intellectual property rights resulting from compliance by the Supplier with the Buyer’s instructions, whether express or implied.
10.1 The time stated for delivery in the quotation is dated from the acceptance by the Supplier of the Order, and receipt by the Supplier of all necessary information to enable the Supplier to commence production.
10.2 The dates for delivery of Goods are approximate only and, unless otherwise expressly stated, time is not of the essence for delivery. The Supplier will not be liable in any circumstances for the consequences of any delay in delivery or failure to deliver, and in the event of such delay the Supplier shall be allowed a reasonable extension of time for completing the delivery having regard to the reasons for the delay.
10.3 No delay in delivery shall entitle the Buyer to reject any delivery or any further instalment or part of the order or any other order from the Buyer or to repudiate the contract or the order.
11. Where the Goods are quoted “ex-stock”, the quotation is made subject to the Goods being unsold at the time that the Order is received.
12. The Supplier reserves the right to under or over deliver by a maximum of 5% and call the Order complete.
The Buyer is responsible for off-loading the Goods at the site. In the
event of delay in delivery caused by delay in the receipt of the Buyer’s
instructions or due to suspension of production at the Buyer’s request,
any expenses incurred by the Supplier shall be added to the price and
paid for by the Buyer.
13.2 If for any reason the Buyer is unable to accept delivery, or unable to collect the Goods when the Goods are due and ready for delivery or collection, (as the case may be), the Supplier may arrange storage of the Goods at the Buyer’s risk, and the Buyer shall be liable to the Supplier for the reasonable costs (including insurance) of such storage. This provision is without prejudice to any other right which the Supplier may have in respect of the Buyer’s failure to take delivery or to collect the Goods or pay for them in accordance with the contract.
14. DAMAGE, SHORTAGE OR NON-DELIVERY OF GOODS
14.1 The risk in the Goods shall pass to the Buyer on delivery, notwithstanding that the property in the Goods has been retained by the Supplier in accordance with clause 21.1 below.
14.2 The Supplier will entertain no claim for damage in transit, shortage of delivery or loss of Goods in transit unless the following procedures are strictly adhered to:-
14.2.1 In the case of damage in transit or shortage of delivery, (and without prejudice to clause 12 above) the Buyer must inform the Supplier and the carrier concerned by separate notices in writing within 7 days of the receipt of the Goods, followed by a complete claim in writing made to the Supplier within 14 days of the receipt of Goods;
14.2.2 In the case of non-delivery of Goods, the Buyer must inform the Supplier and the carrier concerned within 7 days of the date stipulated by the Supplier for delivery, followed by a complete claim in writing made to the Supplier within 14 days of the stipulated delivery date.
14.2.3 The Goods in respect of which any claim is made for damage in transit or shortage of delivery shall be preserved intact as delivered for a period of 14 days after the claim is made, during which time the Supplier shall have the right to inspect the Goods, and the Buyer hereby authorises the Supplier (or his agent) to enter upon the Buyer’s premises to perform this inspection.
14.2.4 All Goods shall be examined immediately upon arrival at the Site, and any Goods showing signs of damage must be signed for accordingly in the delivery book of the carrier concerned. (This provision is separate and additional to the requirement for written notice under sub-clauses 14.2.1 or 14.2.2 above).
14.3 The Buyer shall not be entitled to deduct or set-off any claim for damage in transit, shortage in delivery or non-delivery of Goods from the purchase price of the Goods (or consignment of Goods) owing by the Buyer to the Supplier except with the express written consent of the Supplier.
Carriage is charged ex-works.
Unless otherwise specified in the quotation, all packing will be charged to the Buyer.
17. TERMS OF PAYMENT
17.1 Prices quoted are net and in sterling unless otherwise agreed. Subject to credit facilities being approved by the Supplier, accounts are due for payment not later than 30 days from the date of invoice (except by special written arrangement with the Supplier); otherwise full payment in cash or cleared funds will be required before the Order is processed.
17.2 Without prejudice to any other rights of the Supplier either under general law or as hereinafter contained, the Supplier reserves the right to charge interest on overdue accounts; such interest to be calculated on a daily basis on the amount outstanding at the rate of 5% above the base rate of The Royal Bank of Scotland plc from time-to-time in force, from the date on which payment fell due until payment, (whether made before or after judgement has been obtained by the Supplier against the Buyer).
17.3 If the Buyer fails to pay any invoice in accordance with the foregoing terms (or other terms specified in the contract), the Supplier shall be entitled: (without prejudice to any other right the Supplier may have) 17.3.1 to suspend further deliveries both on the same Order and on any other Order from the Buyer until the outstanding account is paid in full; and
17.3.2 to charge to the Buyer such reasonable legal costs as the Supplier may incur (including internal Legal Department costs) in procuring the settlement of the Buyer’s overdue account(s).
17.4 All payments will be made without deduction or set-off.
17.5 The Supplier shall be entitled to withhold the provision and/or execution of any separate written agreement, deed or other document requested by the Buyer (or by any other person) relating to or concerning the Goods (including without limitation any warranty or guarantee concerning the design and/or manufacture of the Goods) until all monies due by the Buyer to the Supplier under the terms of the contract (or owed by the Buyer to the Supplier on any other account) have been paid in full.
18. Where Goods are delivered and invoiced by consignment, each consignment shall be deemed to represent a different account, and each is payable accordingly. Without prejudice to the above, any default in payment for a consignment shall, at the option of the Supplier alone, be deemed to be a breach of the whole of the contract, and the Supplier reserves the right to rescind the whole of the unfulfilled part of the Order and claim damages for actual and consequential losses.
19. Where Goods are to be delivered outside the United Kingdom, payment must be made against delivery of the goods or shipping documents, FOB UK port or CIF port of destination unless credit arrangements within the United Kingdom approved by the Supplier have been made.
Notwithstanding any other provisions in these conditions, the Buyer
shall be entitled to open a trading/credit account with the Supplier
only with the prior agreement of the Supplier, which agreement shall
include the Supplier making appropriate enquiries and being satisfied as
to the Buyer’s creditworthiness. In circumstances where (in the opinion
of the Supplier) genuine doubts arise as to the Buyer’s financial
position or creditworthiness, the Supplier reserves the right by notice
to the Buyer (without liability to the Buyer and without the need to
provide any reason therefor) to:-
20.1 withdraw the availability of the Buyer’s existing trading/credit account with the Supplier (in which event all sums due by the Buyer to the Supplier on any account become payable immediately); or
20.2 reduce the level of the Buyer’s existing trading/credit account with the Supplier (in which event any sums due by the Buyer on any account in excess of the Buyer’s revised credit limit with the Supplier shall become payable to the Supplier immediately); and the Supplier shall be entitled to suspend delivery or performance of the contract or any part or consignment thereof or the processing of any Order without liability to the Buyer until payment or satisfactory security for payment acceptable to the Supplier has been provided by the Buyer.
21. PASSING OF TITLE
21.1 Notwithstanding that risk in the Goods shall pass to the Buyer in accordance with clause 14.1 above, the legal and equitable title to the Goods (whether separate and identifiable or mixed with other Goods) shall remain with the Supplier until payment in full (in cash or cleared funds) has been received by the Supplier:-
21.1.1 for those Goods;
21.1.2 for any other Goods supplied by the Supplier;
21.1.3 of any other monies due from the Buyer to the Supplier on any account.
21.2 Until such time as title passes to the Buyer under these provisions, the Goods shall be insured by the Buyer from the date of delivery at its own expense for their full replacement value against all usual risks, and kept safe in good condition and stored separately and clearly identifiable as property of the Supplier.
21.3 Goods shall be deemed sold or used in the order delivered to the Buyer.
21.4 At any time before title to the Goods passes to the Buyer (whether or not any payment to the Supplier is then overdue or the Buyer is otherwise in breach of any obligation to the Supplier), the Supplier may (without prejudice to any other of its rights):-
21.4.1 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;
21.4.2 Require delivery up to it of all or any part of the Goods.
21.5 The Supplier may at any time appropriate sums received from the Buyer as it thinks fit notwithstanding any purported appropriation by the Buyer.
22.1 The Buyer shall be entitled to resell the Goods in the ordinary course of business, notwithstanding that at the time of resale, the Goods are the property of the Supplier by reason of clause 21 above, subject to the following conditions:-
22.1.1 any resale shall be effected by the Buyer as agent for the Supplier, subject to the Buyer having no authority to create privity of contract between the Supplier and any third party to whom the Goods are sold; and
22.1.2 the Buyer shall hold the proceeds of any resale (or so much thereof as shall be equal to the total of the sums referred to in clause 21.1 above) as bailee of the supplier in a separate, identifiable bank account; (the Buyer and Supplier hereby expressly declare that such a fiduciary relationship shall be deemed to exist on resale, notwithstanding any contrary provisions in the contract, or whether credit facilities have been extended to the Buyer in accordance with clause 17.1 above) and
22.1.3 the Buyer shall not assign, charge or otherwise deal with any book debt or other debt arising out of such resale.
22.2 Each clause and sub-clause of clauses 21 and 22 is separate, severable and distinct, and accordingly, in the event of any of them being for any reason whatever unenforceable according to its terms, the others shall remain in full force and effect.
23. WARRANTY – LIMIT OF LIABILITY
The Supplier warrants that it will (at the Supplier’s choice) either repair or replace any Goods which are accepted by the Supplier as being defective, or not in accordance with the contract or any express description or representation given or made by or on behalf of the Supplier, in respect of defects which under proper use appear in the Goods within a period of twelve months from despatch of such Goods from the Supplier’s works (the “warranty period”) and provided always that such defective goods are promptly returned to the Supplier (unless otherwise arranged) and that the defective or faulty Goods have already been paid for in accordance with the contract, save that this warranty shall not apply where the defect or fault is attributable to defective materials supplied by third parties where the Buyer’s only remedy will be against that third party.
24. The Buyer’s remedies in respect of any claim under the foregoing express warranty contained in clause 23 above or any condition or warranty implied by law or any other claim in respect of the Goods or any workmanship in relation to them (whether or not involving negligence on the part of the Supplier) shall be limited in all cases to repair or replacement as aforesaid and any condition or warranty implied by law shall cease to apply after the expiry of the warranty period; and the Supplier shall not in any circumstances be liable for any damages, compensation, costs, expenses, losses or other liabilities, whether direct or consequential, and any other remedy which would otherwise be available is hereby excluded except to the extent that such exclusion is prohibited by any rule of law. A claim in respect of any defect or failure to comply with the specification or in respect of any delivery or instalment of any order or part of them shall not entitle the Buyer to cancel or refuse delivery of or payment for any other order, delivery or instalment or any part of the same order, delivery or instalment.
Whilst every effort is made to ensure the employment of sound materials
and good workmanship no warranty is given in respect of such matters
for the fitness of the goods for any particular purpose even if such
purpose has been made known to the Buyer.
25.2 The Supplier will not accept any claim in respect of any goods to which repairs have been carried out by the Buyer unless the Supplier has given prior approval in writing for such repairs to be carried out.
25.3 The Buyer shall be responsible for the observance of and compliance with the requirements of the Factories Act 1961, (and any amendment or re-enactment thereof) and all existing applicable legislation concerning Health & Safety, and all other rules and regulations (whether statutory or otherwise) the observance and performance of which are necessary to comply with the Law of the country where the goods are installed and the Buyer shall indemnify the Supplier against all actions, costs, claims and demands arising under such Act, Rule or Regulation.
Orders once accepted by the Supplier cannot be cancelled except with the Supplier’s written consent and upon terms which will indemnify the Supplier against all possible loss.
If the Buyer enters into a deed of arrangement or commits an act of bankruptcy or compounds with his creditors or if a receiving order is made against him or (being a company) it shall pass a resolution or the court shall make an order that the Buyer shall be wound up (otherwise than for the purposes of amalgamation or reconstruction) or if a receiver (including an administrative receiver) shall be appointed over any of the assets or undertaking of the Buyer or if the Buyer suffers the appointment or the presentation of a petition for the appointment of an administrator or if circumstances shall arise which entitle the court or a creditor to appoint a receiver (including an administrative receiver) or a manager or which entitle the court to make a winding-up order or if the Buyer takes or suffers any similar action in consequence of debt or if the financial responsibility of the Buyer shall, in the opinion of the Supplier, become impaired or if the Buyer shall commit any breach of any part of the contract the Supplier may without prejudice to it’s rights and remedies under these conditions stop all Goods in transit and suspend further deliveries and by notice to the Buyer may terminate the contract immediately.
28. BUYER’S MATERIALS
28.1 The Supplier shall not be under any obligation to return to the Buyer any wastage of materials belonging to the Buyer and supplied to the Supplier for machining, processing or other treatment (“the treatment”) unless this is specifically agreed in writing by the Supplier.
28.2 The Buyer shall supply the Supplier with materials of sufficient quality as to enable the Supplier to carry out the treatment in the manner prescribed by the Buyer, and the Buyer hereby agrees to indemnify the Supplier against all losses, damages, injury, costs and expenses of whatever nature suffered by the Supplier to the extent that the same are caused by or related to:-
28.2.1 designs, drawings, patterns or specifications given to the Supplier by the Buyer in respect of the Goods;
28.2.2 defective materials or products supplied by the Buyer to the Supplier which are unsuitable for the treatment;
28.2.3 the improper incorporation, assembly, use, processing, storage or handling of the Goods by the Buyer.
The Buyer’s materials shall be delivered to the Supplier carriage paid
and after the treatment must be collected from the Supplier, otherwise
the cost of packing and delivery will be charged to the Buyer.
29.2 The Supplier accepts no responsibility for damage caused to the Buyer’s materials whilst in the possession of the Supplier.
30. NON-STANDARD ORDERS
Where the Supplier accepts an Order from the Buyer for Goods or materials of a type, size or quality not normally produced by the Supplier, the Supplier will use all reasonable endeavours to execute the Order, but if it proves impossible, impracticable or uneconomical to carry out or complete the Order, the Supplier reserves the right to cancel the contract or the uncompleted balance of it, in which event the Buyer will only be liable to pay for the part of it actually delivered.
31. LEGAL CONSTRUCTION
The conditions herein contained shall be effective only in so far as they are permissible at law, and in the event of any such condition (or part thereof) becoming invalid, illegal or unenforceable for any reason whatever then in so far as it is practicable to do so the remaining conditions shall be read and construed as though that condition or part thereof were deleted herefrom in its entirety.
The contract (and any proceedings whereby one party might be entitled to join the other as a third party) shall be governed by and construed in all respects in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English courts.