Conditions of Sale
In these conditions, "The Company" means Q-railing Limited and any subsidiary or associate of the company by which the goods are sold.
1. (a) The Company's quotations are not binding on the Company and a contract (hereinafter referred to as "the contract") will only come into being upon acceptance by the Company of the Buyer's order and the following conditions shall be deemed to be incorporated therein.
(b) The contract will be subject to these conditions. All terms and conditions appearing or referred to in the Buyer's order or otherwise stipulated by the Buyer shall have no effect. Any variation of the contract must be confirmed in writing by the Company.
2. Dates or periods for delivery stated in the contract are only approximate and not essential terms onless in the circumstances of any particular case the parties agree guaranteed delivery dates and the contract so provides. Except as provided in Clause 4 hereof delays in delivery shall give no right to cancel the contract.
3. Should the manufacture or delivery of any of the goods at any of the Company's producing works or sub-contractors works or other locations or the delivery thereof to the Buyer elsewhere whether by the Company or a subsidiary company or an independent carrier be prevented or hindered directly or indirectly by fire, the elements war, civil commotion strikes or lock outs, industrial dispute, shortage of raw materials or fuel notwithstanding that the Company has taken all reasonable steps to procure the same, shortage of labour, breakdown or partial failure of plant or machinery, late receipt of the Buyer's specification or other
necessary information, acts, orders or regulations of Governments or directives of the Commission of the European Communities, delay on the part of any independent sub-contractor or supplier or any cause whatsoever beyond the reasonable control of the
Company or any if its subsidiary companies concerned with the manufacture or delivery of the goods then, notwithstanding any warranty modifying the provisions of Condition 2 herein, the time for delivery of the goods shall be extended for a reasonable period having regard to the effect of the delaying cause on the manufacture or delivery of the goods.
4. The parties may by agreement in writing cancel the contract or any deliveries thereunder if delivery of any goods is likely to be delayed by reason of the causes or events referred to in the last preceding condition and -
(a) The company shall not have commenced the manufacture of the goods or the goods have been lost, destroyed or irreparably damaged, and
(b) The delay is likely to continue so long that the Buyer will need to acquire substitute goods from a source other than the Company, and the Buyer has promptly notified the Company of the consequences of such delay and
(c) The Buyer shows to the reasonable satisfaction of the Company the affected by lack of goods or that the Buyer is in peril of being in breach of a contractual obligation to a third party, then the Company may at the request of the Buyer agree to the cancellation of the delivery of those goods provided that all costs and expenses incurred by the Company up to the time of cancellation are reimbursed by the Buyer forthwith. The Company shall have no liability to the Buyer in the event of such cancellation.
5. (a) The Company reserves the right to supply the goods from any of its producing works or any sub contractor or supplier of its choice.
(b) Delivery of the goods shall take place at the delivery points specified in the contract.
(c) If the contract provides for the Buyer to collect the goods, delivery shall take place at the works from which the goods are to be collected and the Buyer shall collect them without delay. If the goods are not collected by the Buyer within 3 days of being so notified, the Company may despatch the goods itself by such means of transport as the Company may choose at the Buyer's expense and risk or store them at the expense and risk of the Buyer.
(d) Where the contract provides for delivery of the goods elsewhere than at the Company's site, the Company will entertain a claim by the Buyer in respect of loss or damage in transit only if the Buyer:
(I) Gives written notice to the Company within 21 days of the despatch of the goods in the case of nondelivery or within 7 days of delivery of the goods in any other case, and
(II) where the goods are transported by an independent freight carrier, complies in all respects with the freight carrier's conditions of carriage for notifying claims for loss or damage in transit.
(e) The Company reserves the right to charge to the Buyer any costs, charges expenses incurred by the Company as a result of vehicle or wagon or detention and demurrage of ships in consequence of any act or omission of the Buyer, its servants or agents, or as a result of special requirements or stipulations of the Buyer not provided for in the contract.
(f) (I) Any marine insurance required to be affected by the Company under the contract shall unless otherwise agreed in writing be 10% over the invoice price and shall cover the interest from the commencement of transit to the destination named in the contract as provided and contained in the Institute of London Underwriters ("the Institute") Cargo Clauses, the institute's War Clauses, and the Institute's Strikes Clauses, current at the time of shipment.
(II) Except as varied by these conditons or otherwise agreed in writing the commercial terms in the contract such as CIF and C&F shall have the meanings assigned to them by Inconterms 1990 edition including any additions or amendments thereto.
6. The goods are supplied to specifications (including dimensions, weights, analyses and properties) stated expressly in the contract or where none is specified, to the specifications published by the Company or where none so published to any relevant British Standard Specification or code of Practice.
7. (a) Unless the parties have expressly agreed in writing to modify this condition, then notwithstanding the provisions of Condition 6 the quality of the goods or their fitness or suitability for any purpose and end use application however and whenever
expressed or wich may be implied by statute, custom of the trade or otherwise is hereby excluded.
(b) Without prejudice to the foregoing, no statement or undertaking contained in any Britisch Standard, Euronorm, ISO Recommendation or other standard or technical specification as to the suitability of the goods for any purpose shall give rise to any legal liability. The Buyer shall satisfy itself that the goods are suitable for any product or application for which they are to be used before the goods are incorporated into such product or application.
8. Where the contract provides for testing or inspection of the goods by or on behalf of the Buyer before delivery whether at the Company's producing works, other locations or elsewhere, then upon the Company giving notice of the availability of the goods
for inspection/testing the Buyer shall inspect and/or test the goods within 7 days of such notice. If the Buyer does not inspect or test the goods within the time specified or if within 14 days of such testing or inspection the Buyer does not notify the Company in writing that the goods are not in accordance with the contract, specifying the matter complained of then the Buyer shall conclusively be deemed to have accepted the goods as being in accordance with the contract and shall not thereafter be entitled to reject the goods on the grounds of anything which such testing or inspection has or would have revealed.
9. The Buyer shall be deemed to have accepted the goods and it shall be conclusively agreed that the goods are in accordance with the contract unless:
(a) The Buyer gives notice in accordance with the provisions of Conditions 8;
(b) Within 21 days after receipt of the goods and prior to their use re-sale the Buyer serves upon the Company a written notice specifying any defect in the quality or state of the goods which would be apparent upon careful inspection or by such testing as it is reasonable in all the circumstances for the Buyer to undertake or stating why the goods are not otherwise in accordance with the contract and thereafter provides to the Company a reasonable opportunity of inspecting or testing the goods before they have been used or processed; or
(c) If a defect in the quality or state of the goods would not be apparent upon careful inspection or reasonable testing the Buyer serves upon the Company written notice of such defect forthwith upon it's discovery and in any event not more than 12 months
after the receipt of the goods specifying the matters complained of and affording to the Company a reasonable opportunity of inspecting the goods before any making good or replacement is undertaken. The Buyer shall not be excused from providing such
opportunity by reason only of the incorporation of the goods in the property of a third party or the location of the goods in, upon or under the premises or land of a third party. Any dispute between the parties as to whether any goods are defective in quality or state or otherwise not in accordance with the contract shall be referred in accordance with the provisions of the Arbitration Acts 1950 and 1979 or any statutory modifications or re-enactment thereof for the time being in force to a single arbitrator to be agreed between the Company and the Buyer or in default of agreement to be nominated by the President for the time being of the Law Society.
10. Provided that the Buyer has complied with the requirements as to notice in Conditions 8 or 9 whichever may be applicable and subject to the provisions of Condition 13 herein, if the goods or any part therof are defective in quality or state or (save for discrepancy in weight or quantity) otherwise not in accordance with the contract then, if the Company and the Buyer do not agree that the Buyer should accept the goods at an agreed value or that the goods should be made good at the Company's expense the Company undertakes to accept a return of the relevant goods and at the Company option either to:
(a) Repay or allow the Buyer invoice price therof (including freight) and any reasonable transport costs incurred by the Buyer in carrying the relevant goods from the place of original delivery of such goods to the Company's site or to such other place as the Company may nominate, or
(b) Replace the goods by delivering replacement goods to the original place of delivery as soon as may be reasonably practicable.
11. The Buyer's remedies in respect of any claim under Condition 10 hereof and of any condition or warranty implied by law and of any other claim in respect of the goods or the quality or workmanship thereof shall in all cases (whether or not involving negligence or breach or contact on the part of the Company) be limited to the matters specified under Condition 10 hereof and the Company 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 in law 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 contract or in respect of any delivery or instalment of a contract or any part thereof shall not entitle the Buyer
to cancel or refuse delivery of or payment for any other order, delivery or instalment of any part of the same order, delivery or instalment. The Company require a reasonable period of time to carry out any replacement.
12. (a) Where the contract states that the goods are sold as "other than prime", "non prime", "no warranty", or by any such similar description or where goods are accepted by the Buyer pursuant to Condition 10 hereof and the Company and the Buyer agree that such goods are sold as "other than prime", "non prime", "no warranty", or by any such similar description then in all cases such goods are sold in their actual state as seen without warranty and with all faults whether or not the goods gave been inspected by the Buyer prior to delivery. Any statement, specification, description or other information provided by the Company
in respect of such goods is given in good faith but the Company can accept no responsibility for its accuracy. Under no circumstances will the Company be under an obligation to replace or make good such goods or entertain any claim whatsoever in respect thereof.
(b) If the Buyer shall re-sell such goods the Buyer shall ensure that provisions in similar form to those set out in this clause 12 are incorporated in the re-sale agreement unless prior to reselling the goods the Buyer has caused the goods or such part of the goods as the Buyer resells to comply with a recognised specification or standard.
13. Each part, delivery or instalment of the goods shall be deemed to be sold under a separate contract. Delivery to the Buyer of a quantity of goods less than that which the Company has agreed to sell shall under no circumstances entitle the Buyer to reject the goods delivered.
14. (a) Risk in the goods shall pass to the Buyer when the goods are delivered to the Buyer.
(b) The Company and the Buyer expressly agreed that until the Company has been paid in full for the goods comprised in this or any other sale contract between them, or until all other monies due from the Buyer to the Company on any account have been paid in full:
(I) Legal and beneficial ownership of the goods comprised in the contract remain with the Company;
(II) The Company may recover those goods at any time from the Buyer if in its possession, if the amount outstanding from the Buyer to the Company in respect of goods supplied or any other amounts owed shall remain unpaid after the due date for payment has passed (with it being a requirement that the Buyer keeps the goods separately and readily identifiable as the property of the Company) and for that purpose the Company, its servants and agents may enter upon any land or building upon which the 7 goods are situated;
(III) The Buyer has the right to dispose of the goods (as between it and its customer only)as principle in the ordinary course of its business for the account of the Company (but any warranties, conditions or representation given or made by the Buyer or any third party shall not be binding on the Company who shall be indemnified by the Buyer with respect thereto) with such right being terminable on the Company giving to the Buyer written notice at any time and being automatically terminated (without notice) upon any insolvency of the Buyer or it going into liquidation (as defined in the Insolvency Act 1986) or it having a receiver or other similar officer appointed or calling a meeting of its creditors or any execution or distress being levied on the goods in its possession;
(IV) In the event of such disposal, the Buyer has the fiduciary duty to the Company for the proceeds but may retain therefrom an excess of such proceeds over the amount outstanding under this or any other sale contract between them, and the Company has the additional right to recover the Buyer's price directly from the Buyer's customer to the extent unpaid and if
the Company avails itself of such right the Company will account to the Buyer for any such excess as aforesaid less any expenses incurred by the Company in respect of such recovery;
(V) If the Buyer incorporates the goods into other products (with the addition of its goods or those of others) or uses the goods as material for other products (with or without such addition) the property in those other products is upon such incorporation or use ipso facto transferred to the Company and the Buyer as bailee of them for the Company will store the same for the company in a proper manner without charge to the Company and in the event of such incorporation or use as is envisaged by this subclause the provisions of sub-clauses (b)(II) to (IV) above shall apply mutatis mutandis, to those other products in place of the goods. For the purpose of this sub-clause, decoiling, cutting, processing, further processing or re-bunding of goods shall not constitute incorporation or use as material for other products.
(VI) Each sub-clause, (II), (III), (IV), and (V) above shall be construed and have effect as a separate clause and accordingly in the event of any of them being for any reason whatsoever unenforceable according to its terms, the others shall remain in full force and effect.
15. The Company shall be entitled without projudice to its other rights and remedies either to terminate wholly or in part any or every contract between itself and the Buyer or to sespend any further delivery under any or every contract in any of the following events:
(a) If any debt is due and payable by the Buyer to the Company but is unpaid;
(b) If the Buyer had failed to provide any letter of credit, bill of exchange or any other security equired by the contract provided that in such event the aforesaid rights of termination or suspension shall apply only in regard to the particular contract in respect of which the Buyer shall have so failed;
(c) If the Buyer has failed to take delivery of the goods under any contract between it and the Company otherwise than in accordance with the Buyer's contractual rights;
(d) If the Buyer becomes insolvent or enters into any composition or arrangement (including a voluntary arrangement) with its creditors or being a body corporate has passed a resolution for voluntary winding up except where solely for the purpose of reconstruction or if a petition has been presented for an order for its winding up or for a Receiver (including an Administrative
Receiver) or Administrator to be appointed or if any such order or appointment is made or if, being an individual or partnership, the Buyer suspends payment of his or their debts in whole or in part or if an application has been made for an Interim Order or a petition has been presented for a Bankruptcy Order or if any such order is made or if the Buyer whether or not a body corporate shall carry out or be subject to any analogous act or proceeding under foreign law. The Company shall be entitled to exercise its aforesaid rights of termination or suspension at any time during which the event or default giving rise thereto has not ceased or been remedied, and in the event of any such suspension the Company shall be entitled as a condition of resuming delivery under any contract between it and the Buyer to require prepayment of or such security as it may require for the payment of the price of any further delivery.
16. the buyer shall not be entitled to withhold payment of any amount payable under the contract to the Company because of any disputed claim of the Buyer in respect of defective goods or any other alleged breach of the contract not shall the Buyer be entitled to set off against any amount payable under the contract to the Company any monies which are then not presently payable by the Company or for which the Company disputes liability.
17. (a) Unless the contract otherwise expressly provides, the price payable by the Buyer for each delivery shall be the Company's ruling price as published in its price list current at the date of despatch to which shall be added any Value Added Tax and any other tax or duty relating to the sale or delivery of goods chargeable to the Company and (where appropriate) the applicable freight and other charges as specified in the relevant carriage tariff current at the date of despatch. Unless otherwise expressly stated in the contract the price of such delivery (including such freight and other charges) shall be paid in full and received by the Company by the last day of the month following the month in which the goods were despatched. The Company shall be entitled to charge interest on any sums not so paid. Such interest shall be calculated on a day to day basis on the amount outstanding at the rate of 3% above the arithmetic average for each day of the published base rate of The Royal Bank of Scotland plc.
(b) Payment shall be made in the currency specified in the contract. The amount of the price to be paid is that specified on the face of the contract or calculated in accordance with the formula there specified. That amount shall not be subject to any discount or deduction except as agreed in writing by the Company.
(c) Quotations in a currency other than sterling are based on the rate of exchange at the time of quotation will be subject to revision up or down if any different rate of exchange is ruling at the date the order acknowledgement is despatched.
(d) The contract price for the goods is for the supply of the goods in accordance with the express terms of this contract.
18. The goods are sold on condition that they will not be resold by the Buyer or its purchasers or sub-purchasers for delivery in an unprocessed state outside the territory of the European Coal an Steel Community ("The Community") or Austria, Finland, Norway, Sweden, Iceland and Switzerland ("the ETA Countries"). The Buyer shall be responsible for any breach of this condition and the Buyer shall also be responsible for ensuring that no goods sold to it by the Company for delivery outside the Community or the ETA Countries shall be reimported in an unprocessed state into the Community or the ETA Countries either by the Buyer or any of its purchasers or sub-purchasers. On receipt of a written demand from the Seller, the Buyer shall produce evidence of the ultimate destination of the goods.
19. If any goods bought from the Company are resold by the Buyer in an unprocessed state within the territory of the Community or to Austria, Finland, Norway or Sweden, then unless such resale is made from stock the Buyer shall comply in respect of such resale with the requirement of the decisions of the Commission of the Community for the time being in force relative to such resale. Further particulars of the applicable decisions will be supplied on request. The references in this clause to "The Commission" are to the Commission of the European Communities exercising its powers in accordance with the provisions of the
Treaty of Paris of 18th April 1951 establishing a European Coal and Steel Community and to goods are to goods of the types listed in Annex to the said treaty.
20. The rights of the Company or the Buyer shall not be prejudiced or restricted by any indulgence or forbearance extended by either party to the other and no waiver by either party in respect of any breach shall operate as a waiver in respect of any subsequent breach. Any variation in the terms of this contract must be agreed in writing between the parties.
21. The Buyer shall indemnify the Company against all actions, casts (including the cast of defending any legal proceedings), claims, proceedings, accounts and damages in respect of any infringement or alleged infringement of any patent, registered design, unregistered design, copyright, trademark or other industrial or intellectual property rights resulting from compliance by the Company with the Buyer's instructions, whether expressed or implied.
22. The Buyer agrees upon demand to indemnify the Company against all loss, damage, injury, costs and expenses of whatever nature suffered by the Company to the extent that the same are caused by or related to:
(a) Specifications or designs given or stipulated by the Buyer to the Company in respect of goods produced by the Company for the Buyer; or
(b) Defective materials or products supplied by the Buyer to the Company and incorporated by the Company in goods produced by the Company for the Buyer; or
(c) The improper incorporation, use, processing, storage or handling of goods by the Buyer.
23. In the event that, for any reason, any provision or provisions in these Conditions or any part thereof is or is held to be void, unenforceable or otherwise invalid, any contract made which incorporates these Conditions shall continue to be fully binding and all other Conditions herein, inclucing the remainder of any condition where the effect of some part thereof is avoided shall remain fully effective.
24. The contract shall be governed by and construed in accordance with the laws of England. The Buyer on entering into this contract submits to the jurisdiction of the English Courts.
25. For the purpose of these conditions the expression "holding company" and "subsidiary" shall have the meaning attributed to it by Section 736 of the Companies Act 1985 as amended by the Companies Act 1989.
