SOMERS FORGE LIMITED TERMS OF SALE & PURCHASE
1. GENERAL
a) These terms and conditions supersede all earlier sets of conditions and apply to every contract entered into by Somers Forge Limited (“the Seller”) for the sale or supply of goods or services to any other person, firm or company (“the Buyer”).
b) Unless other terms and conditions are expressly accepted by the Seller by means of a written amendment to these terms and conditions signed by one of the Seller’s directors and referring specifically to the terms or conditions to be amended, any contract howsoever made between the Seller and the Buyer (“the Contract”) shall be subject to these terms and conditions to the exclusion of any terms and conditions stipulated or referred to by the Buyer whether or not the same are endorsed upon , delivered with, or referred to in any purchase order or other document of the Buyer. No representative or agent of the Seller has authority to agree any terms or make representations inconsistent with the conditions or to enter into any contract except on the basis of these conditions.
c) “goods” means the goods, articles, materials and any services which are to be supplied by the Seller pursuant to the Contract.
2. QUOTATIONS
a) All prices quoted are exclusive of Value Added Tax and/or any other form of tax currently in force, which will be charged at the appropriate rate ruling at the tax point for value added purposes.
b) The Seller reserves the right to amend or correct any accidental error or omission in any quotation.
c) Goods to be exported or shipped from the United Kingdom (including shipments to Northern Ireland) hereinafter referred to as “international supply contracts” are sold and shall be delivered ex-works and all prices are quoted on that basis, any packaging and/or carriage shall be charged at extra cost.
3. FORMATION OF CONTRACT
No order in pursuance of any quotation or otherwise shall be binding on the Seller unless and until such order is accepted by the Seller. In the event that the Seller has not given a written acknowledgement of the Buyer’s order these conditions, provided that the Buyer shall have had prior notice of them, shall nonetheless apply to the Contract.
4. PRICES
a) The Seller reserves the right to invoice at prices ruling according to the Seller’s price current at the date of despatch of the goods.
b) Any increased costs imposed on the Seller during manufacture, whether resulting from any unforeseen circumstances, or arising from any inadequate or inaccurate instructions, specifications or drawings given to the Seller by the Buyer, or arising from some other failure by the Buyer, or from any other cause whatsoever, then such increased costs may be applied to the order price and shall be binding on both parties and shall not give rise to any right of cancellation by the Buyer.
5. DELIVERY AND RISK
a) Delivery of goods shall be made to the Buyer at the place agreed between the parties and the risk in respect of all goods shall pass to the Buyer at the time of delivery. If no place for delivery is agreed or notified, the Seller shall notify the Buyer that the goods are ready for delivery, and if the Buyer shall not take delivery within 7 days thereof, delivery shall be deemed effected on the expiry of such notice. Loading or unloading shall be at the risk of the Buyer. Notwithstanding delivery, the property in and title to the goods shall not pass to the Buyer except as provided in condition 10 hereof. Where the Seller does not deliver by its own transport and unless otherwise agreed in writing, the Seller shall on behalf of the Buyer at the Buyer’s expense arrange for the carriage of the goods. Delivery to the carrier will, in such circumstances constitute delivery to the Buyer.
b) Any time or date for delivery will be an estimate only and unless otherwise agreed in writing, the time for delivery shall not be of the essence of the contract.
c) If the delivery of the goods is prevented or delayed by reason of any cause beyond the Seller’s control, then the time for delivery shall be extended for such period as is reasonable.
d) Any delay in the estimated date for delivery shall not give rise to any right of cancellation by the Buyer, nor shall the Seller be liable for any damages, costs or expenses arising from such delay.
e) Failure by the Seller to deliver in accordance with any one of a series of orders shall not entitle the Buyer to treat such failure as a repudiation of subsequent orders in the series.
6. DESCRIPTION
a) Every endeavour has been made to ensure that goods are accurately described in the Seller’s catalogue, but no warranty to this effect is given and no responsibility will be accepted in the event of any error of mis-description in any catalogue, or for loss of damage resulting there from.
b) Where goods are to be supplied to the Buyer’s specification, instruction or design, the Buyer shall supply such specifications with sufficient information to enable the Seller to complete the delivery within the estimated delivery period. Any alterations to the goods which have to be made as a result of any failure by the Buyer to supply all necessary information shall be the subject of an extra charge and the Seller shall not be responsible for any delay in delivery resulting there from. The suitability and accuracy of the Buyer’s specification, instruction or design will be the Buyer’s responsibility. The Buyer will indemnify the Seller against any loss, damage or expense in respect of any liability it shall incur in respect of any goods made or services provided to the specification, instruction or design supplied by the Buyer.
c) The Buyer shall indemnify the Seller against all actions, claims, damages, penalties, costs and expenses to which the Seller may become liable, arising from any infringement, or alleged infringement of any letters patent, trade mark, trade name, copyright, design right, registered design or other similar right of any third party to which any specification, instruction or design supplied by the Buyer might be subject.
d) All drawings, materials, patterns, tools and tooling supplied by the Buyer must be in good condition, free of defect and safe for use by the Seller. The Seller does not accept any liability for the value of such items which are lost, damaged, or destroyed whilst in the Seller’s possession.
7. CLAIMS
a) All consignments of goods must be checked and signed for upon receipt by the Buyer.
b) The Seller accepts no responsibility for any damage, shortage or loss in transit where the goods are delivered by carrier.
c) Where the goods are being delivered by the Seller or a carrier, no claim for damage in transit, shortage of delivery, or loss of goods will be entertained, unless notice in writing is given to the Seller within five working days from delivery or in the case of total loss within 5 days of receipt of the invoice or other notification of despatch. This time limit must not be exceeded and no claims will be accepted unless so notified.
8. EXPORT SALES
a) In the case of international supply contracts, the Buyer shall be deemed to have had the opportunity of examining and rejecting the goods in the United Kingdom before shipment and in the case of any claim arising in respect of any such goods the liability of the Seller to the Buyer shall not extend to the cost of any freight or other transport charges or any pecuniary damage, loss or consequential loss, nor shall there by any liability on the Seller to indemnify the Buyer against claim made by third parties.
b) Upon any default in payment by the Buyer, the Seller shall be entitled forthwith to resell the goods and the Buyer shall be liable to the Seller for any loss involved on such resale. This clause does not limit the Seller’s right to recover any other costs arising through a breach of contract by the Buyer.
9. PAYMENT
a) Subject to any agreement in writing, payment for the goods must be made by the Buyer to the Seller within 30 days after the date of invoice in respect of those goods.
b) Interest will be charged at 4% over the Seller’s clearing bank’s base rate applicable at the date of the invoice, from the period of 30 days after the date of the invoice to the date of actual payment or any instalment thereof, notwithstanding that property of the goods has not passed to the Buyer.
c) The time stipulated for payment shall be of the essence of the Contract and failure to pay within the period specified shall entitle the Seller upon the expiration of five days notice in writing to the Buyer to suspend further performance of the Contract and to stop any goods in transit pending payment and in addition the Seller shall be entitled without any liability to the Buyer to cancel in whole or in part the Contract or any other contract between the Seller and the Buyer without prejudice to any other remedy available to the Seller in respect of such default in payment.
d) Unless otherwise agreed in writing the Buyer shall not be entitled to set off against any monies due to the Seller under the Contract, any amount claimed by or due to the Buyer from the Seller whether pursuant to the Contract or on any other account whatsoever.
10. RESERVATION OF TITLE
a) Other than in the case of international supply contracts, the legal and beneficial ownership and title in the goods shall remain vested in the Seller until the Buyer has paid to the Seller all amounts outstanding in respect of the goods and all other money due from the Buyer to the Seller on any other account.
b) Until the title to the property in the goods passes to the Buyer. i) the Buyer shall store the Seller’s goods and materials in such a way that they are clearly identified as being the Seller’s property ii) the Seller shall be entitled to examine the goods in storage at any time during normal business hours and upon giving the Buyer reasonable notice. iii) the Seller shall be entitled without prior notice to the Buyer to repossess and resell the goods if any of the events specified in Condition 14 hereof shall occur or if any sum owed to the Seller under the Contract or any other contract between the Buyer and the Seller is not paid on the due date for payment. For the purposes of exercising its rights under this sub-clause the Seller, its employees or agents together with all vehicles and plant considered by the Seller to be necessary shall be entitled at any time without prior notice to the Buyer to free and unrestricted entry upon the Buyer’s premises or elsewhere where the goods are situated. c) If at any time when the Buyer is in default of payment for any goods and those goods have been resold, the Buyer shall inform the Seller of that fact and unless the Seller otherwise agrees, the proceeds of sale thereof, or such proportion thereof as represents the unpaid price of the goods shall be held by the Buyer in a separate designated trustee bank account in the joint names of the Seller and the Buyer as trustee for the Seller. d) The rights and remedies conferred upon the Seller by this Condition 10 are in addition to and shall not in any way prejudice, vary or restrict any other rights or remedies of the Seller under the Contract or any other contract between the Seller and the Buyer.
11. WARRANTY
a) Every effort is made to ensure sound material and good workmanship, but all warranties and conditions express or implied as to materials or workmanship, or the merchantability or fitness of goods for any particular purpose, whether such purpose be known to the Seller or not, or implied by law, trade custom, practice or course of dealing or otherwise are excluded. In the event of any goods proving defective however, the Seller is prepared at its sole option either:- i) to replace such materials free of charge at the place of delivery and in the condition originally specified, or ii) refund to the Buyer the price of such goods under the Contract if required to do so. Any liability is limited to such replacement or refund and does not extend to any other expenditure incurred or to any consequential damages. For this warranty to apply:- i) claims must be made by the Buyer within a reasonable time, but not later than 12 months from the date of delivery of the goods. ii) the goods must be found upon examination by the Seller to be defective owing to faulty materials or workmanship. The Seller accepts no responsibility for wear and tear, incorrect or defective storage, fitting, installation or use, unauthorised reconditioning or repair, accident or neglect of the Buyer.
b) Nothing in these Conditions shall:- i) limit or exclude the respective rights and remedies of the Seller and the Buyer under the Unfair Contract Terms Act 1977, or ii) exclude the conditions and warranties implied by Section 12 of the Sale of Goods Act 1979 and, where the Buyer deals as a consumer, the conditions implied by Sections 13 to 15 inclusive of the said Act.
c) The Seller shall indemnify the Buyer:- i) against liability for personal injury to or death of any person resulting from the negligence of the Seller. ii) against liability for loss of or damage to property caused by the negligent act or omission of the Seller or its employees in the course of their employment, provided always that the Seller’s liability shall not in any event exceed the level of the Seller’s Public & Products Liability Insurance cover in force at the time of the Contract. Details of the level of insurance cover in force at any particular time will be advised at the request of the Buyer.
12. LIABILITY
The Seller accepts no liability for any damage direct, consequential or contingent, or for resulting or consequential loss, loss of profits, costs, charges, expenses or any other liability, whether of the Buyer or of any third party howsoever arising, the Seller’s responsibility being strictly limited to replacement as set out above.
13. FORCE MAJEURE
In the event of war, invasion, act of foreign enemy, hostilities (whether war has been declared or not), civil war, rebellion, revolution, insurrection or military or usurped power, the Seller shall be relieved of all liabilities incurred under the Contract wherever and to the extent to which the fulfilment of such obligation is affected, prevented, frustrated or impeded or delayed as a consequence of any such event or by statutes, rules, regulations, orders or requisitions issued by any Government Department, Council or any other duly constituted authority, including the imposition of restrictions or quotas or levies on the exportation or importation of the goods or from strikes, lockouts, labour disputes, breakdown, natural catastrophe, fire or accident to the plant of the Seller, or of a relevant supplier of the Seller, or any other cause (whether or not of a like nature) beyond the Seller’s control.
14. TERMINATION
a) The Buyer may not cancel, extend or delay performance of the contract without the written consent of the Seller.
b) The Contract will terminate immediately upon service of written notice of termination by the Seller on the Buyer on any one or more of the following grounds. i) If the Buyer commits any act of bankruptcy or makes an arrangement or composition with creditors, or otherwise takes the benefit of any act for the time being in force for the relief of insolvent debtors, or has suffered or allowed any execution, whether legal or equitable, to be levied upon his or its property or obtained against him or (being a body corporate) has convened a meeting of creditors (whether formal or informal) or has entered into liquidation, whether voluntary or compulsory (except a voluntary liquidation for the purpose of reconstruction or amalgamation), or has an administrator or administrative receiver appointed of its undertaking or any part thereof.
c) Termination of the Contract in any way whatsover will be without prejudice to the rights, obligation and liabilities of either party accrued prior to termination
d) Without prejudice to any of the Seller’s other rights to claim damages, the Buyer will on termination of the Contract for any reason whatsoever, or if the Buyer cancels, extends or delays or purports to cancel, extend or delay the Contract, or fails to take delivery of any goods, indemnify the Seller against any loss, damage or expense incurred by the Seller in connection with the Contract, including but not limited to the payment of the costs or any goods, materials, plant or tools used or intended to be used therefore and the cost of labour and other overheads, including a percentage in respect of profit.
15. ASSIGNMENT
The Seller reserves the right to assign or sub-contract the fulfilment of the Contract or any part of the Contract.
16 SEVERANCE
If at any time any one or more of these conditions (or any paragraph, sub-paragraph or any part thereof) is held to be or becomes void or otherwise unenforceable for any reason under any applicable law, the same shall be deemed omitted herefrom and the validity and/or unenforceability of the remaining provisions of these Conditions shall not in any way be affected or impaired thereby.
17 WAIVER
The rights and remedies of the Seller under the Contract shall not be diminished, waived or extinguished by the granting of any indulgence, forbearance or extension of time by the Seller nor by any failure of or delay by the Seller in asserting or exercising any such rights or remedies.
18. AGENTS
No agent, distributor, dealer or representative appointed by or representing the Seller is authorised to make or give any representation or warranty, or enter into any commitment on behalf of the Seller, not in accordance with these terms and conditions, unless the same is confirmed in writing by a director of the Seller.
19. PACKAGING
The Buyer undertakes that he will not alter, remove or otherwise interfere with the packaging, branding trade or other marks and labels supplied with or relating to goods intended for resale in the form in which they are supplied by the Seller, or any product, data sheets, warnings, notices and instructions supplied with or relating to the goods as to the property, application, fitting, servicing or use thereof, or intended for the information of the ultimate user thereof and that he will observe all recommendations and instructions of the Seller as to the correct storage and where applicable as to the correct installation and use of the goods. The Buyer will indemnify the Seller against liability, including but not limited to liability under the Consumer Protection Act, for any failure by the Buyer to carry out this obligation.
20. APPLICABLE LAW
These Conditions and each and every contract made pursuant thereto will be construed and operate in accordance with English Law and the Seller and the Buyer hereby irrevocably submit to the exclusive jurisdiction of the English Courts.
21. HEADINGS
The headings to these conditions are inserted for the convenience of reference only and do not form part of these terms and conditions.
SOMERS FORGE LIMITED GENERAL CONDITIONS OF CONTRACT FOR THE PURCHASE OF GOODS AND SERVICES
In these conditions, “the Buyer” means Somers Forge Limited, “the Seller” means the supplier of such goods and/or services, “the Order” means the Buyer’s purchase order for such goods, “the Contract” means the contract, subject to these Conditions, arising from the Seller’s acceptance of the Order, “goods” means the goods, articles, materials and any services which are to be supplied by the Seller pursuant to the Contract and “the Works” means the Buyer’s receiving works for such goods.
1. Unless expressly accepted in writing by a Director of the Buyer any variation of the Order or these Conditions must be deemed to be and will be treated as inapplicable.
2. The Buyer shall be bound by the Order only if it is placed on its official order form and subject to these conditions. In the event that the Seller fails to accept the Order in writing or otherwise, delivery of the goods or provision of the services shall be deemed to constitute acceptance.
3. The price stated in the Order for the goods may only be varied by prior agreement in writing between the Buyer and the Seller.
4. The Seller shall deliver the goods to the address or addresses and/or delivery points as specified in the Order or subsequently specified by the Buyer in writing. Time for delivery shall be of the essence of the Contract.
5. The Buyer reserves the right to require modifications to the design or composition of goods or the nature of the services to be supplied and such modifications shall thereafter be deemed to be incorporated in the Order. An appropriate adjustment as agreed between the Buyer and the Seller shall be made to the price.
6. The goods and services shall conform in all respects with the Order and with any representations previously made by or on behalf of the Seller. They will be fit for any particular purpose for which expressly or by implication is made known to the Seller. They shall be of first class materials and workmanship and as safe as persons are generally entitled to expect.
6.1(a) In the event that the goods are found on inspection by the Buyer, or his customer, not to comply with the Order or these Conditions they may be rejected by the Buyer, whether or not payment has been made to the Seller. Upon such rejection the Buyer may at its option:- i) either return such goods to the Seller at the Seller’s risk and expense for a full credit or replacement; ii) itself correct or repair them and shall be entitled to reimbursement from the Seller in respect of all costs incurred in doing so: or iii) instruct the Seller to attend wherever the goods may be situated and the Seller shall rectify such goods on site.
6.1(b) i) Without prejudice to any rights the Buyer may have under any warranty or guarantee given by the Seller in respect of the goods or any other rights that the Buyer may have, if within 18 months after delivery or 12 months of the goods being first used – whichever period shall be the shorter – there shall appear in the goods (which expression shall, where the context permits, include all materials supplied and work done by or on behalf of the Seller in the performance of the Contract) any defect which under proper use shall arise from faulty design (other than a design made furnished or specified by the Buyer and for which the Seller has disclaimed responsibility in writing within a reasonable period of receiving it) or from faulty materials or workmanship or where such defects arise due to the Seller’s erroneous instructions as to use or inadequate (as well as) faulty materials and workmanship, or any other breach of the Seller’s warranties express or implied, the Seller shall at his expense make good those defects either by repair or (at his option) by the supply of replacements. As regards any goods so repaired or replaced the foregoing provisions shall apply for a period ending 12 months after the date of such repair or replacement. ii) If any such goods are not repaired or replaced within a reasonable time the Buyer may repair or (at the Buyer’s option) replace those goods at the Seller’s expense.
7. The Buyer’s inspectors shall at all reasonable times have access to the premises of the Seller and those of its sub-contractors for the purpose of inspecting and testing the goods during or after manufacture, repairs or servicing and may reject or require the making good of anything that does not conform with the Contract. Such inspection will not constitute an approval of the goods or in any way relieve the Seller from any of its obligations under the Contract.
8. In the event that the Buyer is affected by events beyond its reasonable control, it shall be entitled without incurring any liability to the Seller to require the Seller to defer any delivery (or the provision of any services) for such a period as may be reasonably necessary or to cancel any order. In the event of such cancellation the Seller shall be entitled to payment of any such sum (not exceeding the contract price) as may be reasonable in respect of any work carried out prior to the date of cancellation in the provision of any services or the production of the goods.
9. The Seller shall not without consent in writing of the Buyer, which shall not be unreasonably withheld, subcontract its obligations hereunder (except for materials or form minor details). Any such consent shall not relieve the Seller of any of its obligations under the Contract, and the Seller shall include in its contract with any such assignee or sub-contractor conditions consistent with those of the Order for the benefit of and enforceable directly by the Buyer and shall provide a copy of the assignment or sub-contract to the Buyer on request.
10. The Buyer will not be responsible for any failure to give notice to carriers of loss, damage, mis-delivery, delay, detention in transit, non-delivery or other matters affecting transit unless the Buyer has been advised of despatch of the goods.
11. All patterns, drawings, dies, moulds, specifications and other such items supplied by or at the expense of the Buyer shall remain the Buyer’s property and must be returned in good order and condition on request or on completion of the Contract and shall not be copied or used for any purpose other than for carrying out of the Contract, or disclosed to any third party.
12. Except to the extent that the goods are produced to designs or specifications provided by the Buyer, the Seller shall indemnify the Buyer against all actions, claims, costs, charges and expenses arising from any infringement or alleged infringement of any patent, registered design, trademark, copyright, design right or other industrial property right of any third party arising out of the supply or use of the goods.
13.1 The Seller shall indemnify the Buyer against all losses, liabilities, claims, costs and expenses that may result from loss of or damage to any property (including that of the Buyer) or injury to or the death of any person (including any employee of the Buyer) that may arise out of any act or omission of the Seller, his employees, agents or subcontractors in connection with the Contract, or any defect in the raw materials or in the design, processing, manufacture, storage or transport of the goods.
13.2 Except in respect of claims for loss of or damage to property conferring on a person other than the Buyer a good cause of action against the Seller, or for personal injury or death, the liability of the Seller arising under Clause 13.1 for any one act or omission shall not exceed (unless otherwise stipulated by the Buyer prior to the Contract being entered into) the price of the goods or £500,000 whichever is the greater.
13.3 The Seller shall insure against his legal liability arising under Clause 13.1 above. Such insurance shall extend to indemnify the Buyer and be effected with insurers and on terms approved by the Buyer in the minimum sum of £500,000 unless otherwise stipulated in writing by the Buyer prior to the Contract being entered into. Satisfactory evidence of such insurance and payment of the current premium shall be shown to the Buyer upon request.
14.1 The Seller shall comply with and shall ensure that its sub-contractors comply with the Buyer’s Site Regulations, Buyer’s Instructions and Safety Rules so far as previously communicated to the Seller. The Seller shall comply with and shall ensure that its sub-contractors comply with all applicable legislative provisions, bye-laws and the like, including all relevant Health and Safety regulations.
14.2 All goods shall comply with the applicable national and international quality assurance standards from time to time published for which the Seller is approved, or any other legislation or regulations relating to the supply of the goods.
15. The Seller shall not without the previous written consent of the Buyer advertise or except for the performance of the Contract make known to third parties the fact that the Seller supplies goods to the Buyer.
16. Until delivered to the place or places and in the manner specified in the Contract the goods shall remain at the risk of the Seller who shall insure the same against all risks. Subject to the Buyer’s right of rejection, the property in the goods shall pass to the Buyer upon delivery or upon the making of any part payment, whichever shall come first.
17. The Buyer may by written notice cancel the Contract if the Seller becomes bankrupt, makes voluntary arrangements or deeds of arrangement with creditors or being a Company goes into liquidation (other than for purposes of amalgamation or reconstruction), or suffers an Administrative Receiver or Administrator to be appointed or has an administration order or winding up order made against it.
18. Payment will be made 90 days from date of delivery of the goods.
19. Failure of the Buyer to insist upon the performance of any of the terms of the Contract or to exercise any right thereunder shall not be construed as a waiver of the future performance of such term or the future exercise of such right.
20. This Contract shall be governed by English law and the Seller agrees in the event of dispute to submit to the jurisdiction of the English courts. Repairs and Servicing Where the Contract comprises or includes the repair or servicing of goods of the Buyer, the following additional conditions shall apply together with such of the foregoing conditions as are capable of applying to such Contract and the expression “Seller” shall as regards any such contract mean the Company, firm or person appointed by the Buyer to carry out work of repair or servicing.
21. If the servicing or repair by the Seller of any goods is defective, then (1) if the defect is capable of remedy, the Buyer shall at its option be entitled either to require the Seller to remedy it as soon as possible or itself to remedy it or to procure it to be remedied by another contractor at the cost and risk of the Seller, and (2) if the defect is incapable of remedy and the defective goods are of no use to the Buyer, then the Buyer shall be entitled to invoice the same to the Seller at their value before servicing or repair. The provisions of this Condition shall be without prejudice to any other rights and remedies which the Buyer may have at law.
22. Goods supplied by the Buyer to the Seller for servicing or repair shall remain from the time of receipt until re-delivery as instructed by the Buyer at the absolute risk of the Seller in regard to any loss or damage, excepting only inherent vice and fair wear and tear.
23. Further and without prejudice to the Seller’s aforesaid responsibility the Seller shall at his own cost insure all goods delivered to him by the Buyer from the time of receiving them until re-delivery as intimated by the Buyer for their replacement value against loss, damage or deconstruction resulting from any insurable risk (other than inherent vice or fair wear and tear) which can be reasonably contemplated as affecting the goods. The Seller shall, if requested by the Buyer, effect such insurance in their joint names and the Seller shall upon request produce for inspection by the Buyer the policy of insurance and current receipts for premiums. The Seller will ensure that all such goods are clearly identified at all times as the property of the Buyer, kept in
