ARX MOULDINGS CONDITIONS OF SALE
Tenders are submitted and orders accepted only upon and subject to the following Conditions of Sale.
Unless previously withdrawn, our tender is open for acceptance within thirty days of the date thereof. The acceptance of our tender must be accompanied by sufficient information to enable us to proceed with the order or we shall be at liberty to amend the tender price to reflect any increase in costs resulting from the late supply of necessary information.
3. PACKING & METHOD OF DELIVERY
Unless otherwise specified in our tender,
3.1 Goods to be supplied ex UK
3.1.1 Packing in accordance with our standard export practice is included within our tender and it is not returnable.
3.2.1 Delivery F.O.B. United Kingdom port is not included in our tender unless expressly stated.
3.2.2 Where freight costs are required a separate quotation will be provided and valid for thirty days of the date thereof. Any variation to this because of carrier changes is for your account.
3.2.3 Where delivery C.I.F. is expressly stipulated, all charges for freight, insurance, etc., are based on the rates current at the time of quoting, and any variation in such rates is for your account.
3.3 All delivery terms are to be interpreted in accordance with ICC “INCOTERMS” current at the date of tender.
4. LIMITS OF CONTRACT
Our tender includes only for the supply of goods specified in our tender.
All descriptive, specifications, drawings, and particulars of weights and dimensions submitted with our tender or otherwise are approximate only and are intended merely to present a general idea of the goods described therein. None of these shall form part of the contract.
Any performance figures given by us are based upon our experience and are such as we expect to obtain on test, but we accept no liability for failure to obtain any figures given by us for performance unless we specifically guarantee figures in writing with an agreed sum as liquidated damages agreed as damages for failure to attain performance criteria. In the event of any part of the goods failing to fulfil any performance guarantee, we shall be entitled to a reasonable period to comply with the same. You assume responsibility for the specified capacity and performance of the goods being sufficient and suitable for your purpose.
7. TIME FOR DELIVERY
7.1 Any times quoted for despatch are calculated from receipt by us of the acceptance of our Tender and of all necessary deposit payment, information, and drawings to enable us to proceed. Whilst every effort will be made to deliver the goods within any period specified in our Tender, we will not be liable for any delay in delivery.
7.2 Where transit times are provided, times quoted for delivery are calculated on information obtained from carrier at time of quoting on your behalf. Any variation due to carrier schedule changes / cancellations / rerouting are outwith our control and we will not be held liable for the delay in delivery.
7.3 Where bookings are terminated by the Buyer whilst in transit due to carrier schedule changes / cancellations / rerouting or whatsoever, all resultant costs are for your account.
8. TERMS OF PAYMENT
8.1 All prices are quoted and payable in Great British Pounds (GBP).
8.1.1 All payments are PRO FORMA, of which, payment of 50% deposit is due on placing of order to be paid no later than within 7 days of the date of invoice and prior to manufacture of your order. Failing which we will not be liable for delay to quoted lead times. Payment of 50% balance (plus freight costs if required) must be paid prior to dispatch. Failing which will delay dispatch and may result in prebooked carrier transit cancellations for your account.
8.2 All payments shall be made without deduction or set off. When deliveries (or the provision of services) are spread over a period each consignment will be invoiced as dispatched and each invoice will be treated as a separate account and be payable accordingly. Failure to pay for any Goods or for any delivery or instalment shall entitle us to suspend further deliveries and work both on the same order and on any other order from you without prejudice to any other right we may have. We reserve the right where genuine doubts arise as to your financial position or in the case of failure to pay for any Goods or any delivery or instalment as aforesaid to suspend work on and delivery of any order or any part or instalment without liability until payment or satisfactory security for payment has been provided.
8.3. In the case of sales FOB United Kingdom port, unless otherwise agreed, you shall upon our request nominate a vessel willing to receive the Goods. Failing such a nomination within thirty (30) days (or such longer period as may be agreed by us) we shall be entitled to require immediate payment for the Goods and to place the Goods in store at your risk and expense, or to treat the contract as discharged and dispose of the Goods.
8.5 Any overdue payments shall be subject to interest at 8% per annum above the rate from time to time charged by Bank of England for each month or part thereof that payment remains overdue.
8.6 If for any reason you cannot take delivery or if from any cause beyond our control, we are unable to despatch the goods, payment of the contract value of the goods shall be due upon presentation of invoices and notification from us that the goods are ready for despatch. 9. PRICE ADJUSTMENT
The price appearing in our tender (“the Contract Price”) shall be subject to adjustment as follows:
(a) In the event of the suspension of work by your instructions or lack of instructions, the Contract Price shall be increased to cover any extra expense thereby incurred by us.
(b) We reserve the right to increase all prices by the amount to which we become liable that are out with our control in respect of any material, tariffs, duties, taxes, freight booking cancellations, carriage rescheduling, carrier cancellation charges or whatsoever imposed.
If we do not receive forwarding instructions sufficient to enable us to despatch within twenty-one days, or in the case of goods for export, thirty days after notification that they are ready for despatch, you shall take delivery or arrange for storage. If delivery is not taken or if you do not promptly arrange for storage, we shall be entitled to invoice for the goods as well as store the goods at your risk and expense.
11. DAMAGE IN TRANSIT
We accept no responsibility for loss or damage to the goods or the packing thereof, beyond the point to which we contract to deliver the same. Up to that point we shall not be liable for damage or loss of the goods or any part thereof unless in the case of damage, you expressly notify us and our carriers (if known to you) in writing of the existence of damage within three days and notify us in writing of detailed particulars of the same within seven days after the termination of the transit, and in the case of loss you expressly notify us and our carriers (if known to you) in writing of the loss or damage within fourteen days and supply particulars thereof within twenty-eight days after the date on which the transit of the goods was terminated or would, in the normal course of events, have terminated and subject thereto we will repair or replace free of charge to you the goods damaged or lost as the case may be. When Bills of Lading are taken out by us, we will, on your instructions and at your expense, insure against loss or other risk, and will, on receipt of your indemnity, take all reasonable steps to recover from the underwriters any loss or damage for which they may be liable.
12. TRANSFER OF OWNERSHIP
12.1 The risk in the Goods shall pass to you:
(a) Unless our tender stipulates otherwise, when the Goods are dispatched from our works, and we accept no responsibility for any damage or loss in transit.
(b) If the Goods are appropriated to you but kept at our premises, upon collection of the goods by you or upon the expiry of 7 days from our written notice to you that such Goods are ready for delivery – whichever is the earlier.
12.2 Notwithstanding sub-clause (12.1) above absolute property in and title to the Goods shall remain vested in us, and you shall keep the Goods as bailee and trustee for us (returning the same to us upon request) until the price thereof has been paid in full together with any interest and all other sums due in respect thereof from you in accordance with the order and until payment in full has been received by us for any other Goods supplied by us and of any other monies due from you to us on any account.
12.3 Pending payment for Goods as aforesaid you shall not mix or incorporate the Goods with any other Goods and shall keep the Goods suitably marked or otherwise plainly identified that they are our property.
12.4 Pending payment for Goods as aforesaid you shall store them separately and in such a way that they can be identified as our property, and we shall be entitled to direct you not to resell the same or remove them from where they are located without consent. Any Goods in your possession shall be presumed not to have been paid for unless you can prove otherwise, and we shall have the right to appropriate any payment made by you to any invoice or invoices or not due at the time of payment) in our absolute discretion. If pending payment for Goods as aforesaid you shall sell or otherwise dispose of the Goods or make any insurance claim in respect thereof, you shall not give any warranties or incur any liabilities on our behalf and the proceeds of any such sale or other disposition (or claim hereto) or any such insurance proceeds (or claim thereto) shall belong to us and be held by you as trust funds to the extent of all sums due to us in respect of such Goods, and you shall pay such proceeds into a separate account.
12.5 At any time prior to full payment (whether or not payment is then overdue) we may (without prejudice to any of our other rights) retake possession of the Goods or any part thereof and may enter on your premises by our employees or agents for that purpose of for the purpose of ascertaining whether you are complying with the provisions of this clause.
12.6 Any Goods repossessed by us may be resold on such terms as we may determine and you shall remain liable to us for the difference between the net proceeds of such resale and all outstanding sums due to us in respect of such Goods and for all costs and expenses incurred by us in repossessing, storing and reselling the same.
12.7 Nothing in this clause shall give you any right to return Goods sold by us and the we may sue you for the price when due (without prejudice to its other rights) notwithstanding that property therein may not have passed to you.
12.8 Your rights to use the Goods or to sell them prior to full payment may be terminated forthwith by written notice given by us to you and shall automatically terminate with or without such notice if a receiver is appointed over any of your assets or undertaking or a winding up order is made against you or you go into voluntary liquidation (otherwise than for the purpose of solvent reconstruction or amalgamation) or call a meeting of or make any arrangement or composition with your creditors generally or commit any acts of bankruptcy or allows execution or distress to be levied against your goods and in the event of a Receiver or Liquidator being appointed by us, such Receiver or Liquidator shall pay into a separate bank account any sums received from third parties in respect of sales to them of Goods or Products by us up to the amount of any indebtedness of you to us for our sole benefit.
13 DEFECTS GUARANTEE
13.1 Subject to clause 13.3, all goods of our manufacture are guaranteed against defects from faulty design, materials, or workmanship for twelve months from the date of despatch. We will make good by repair or replacement of the defective part any such defect, provided that such defective parts are promptly returned to our Works or Store (as specified by us), all charges for which are to be prepaid by you. The repaired or new parts will be delivered free. Defective parts thus replaced remain our property.
13.2 Our liability hereunder is in lieu of any condition or warranty implied by law or otherwise as to the suitability of the goods for any particular purpose, use or application. Therefore, you must ensure the product as such is suitable to be used for its intended purpose. If there is any uncertainty it is your responsibility to contact us. 13.3 You are responsible for ensuring that the Goods are installed correctly, including in accordance with any guidelines or instructions which we issue and best industry practice. If the Goods are not so installed, we wil not have any liability under the guarantee at clause 13.1 above.
14 LIMITATIONS OF LIABILITY
14.1 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979.
14.2 Without prejudice clause 14.1, we shall not be liable, whether in contract, by way of indemnity, tort (including but not limited to negligence), restitution, for breach of statutory duty, misrepresentation or otherwise howsoever arising under or in connection with the Contract for: any direct loss of profit (whether actual or anticipated); any direct loss of anticipated savings; or any indirect, economic or consequential loss or damage including but not limited to: (i) indirect loss of profit; (ii) indirect loss of anticipated savings; (iii) loss of contracts; (iv) loss of use of money; (v) loss of revenue; (vi) loss of goodwill or loss of or damage to reputation; (vii) loss of business or business opportunity; (viii) loss of operation time; (ix) loss of opportunity; or (x) loss of or damage to or corruption of data, in each case whether or not such losses were reasonably foreseeable or if we had been advised of the possibility of you incurring such losses. 14.3 Without prejudice to clause 14.1 or clause 14.2, our total liability arising under or in connection with the Contract, whether arising in contract, by way of indemnity, tort (including negligence), restitution, for breach of statutory duty, misrepresentation, or otherwise howsoever arising shall in all circumstances be limited to the amount which we are able to recover from our insurers in respect of such liability, unless such liability is uninsured in which case our liability shall be limited to the Contract Price. 15 PATENTS
We will indemnify you against any claim of infringement of Letters Patent or Registered Design (valid at date of the contract) by the use or sale of any article or material supplied by us to you and against all costs and damages which you may incur in any action for such infringement or for which you may become liable in any such action. Provided always that this indemnity shall not apply to any infringement, which is due to our having followed a design or instruction furnished or given by you, or to the use of such article or material in a manner or for a purpose or in a foreign country not specified by or disclosed to us. And provided also that this indemnity is conditional on your giving to us the earliest possible notice in writing of any claim being made or action threatened or brought against you and on your permitting us at our own expense to conduct any litigation that may ensure and all negotiations for a settlement of the claim. Provided also that this indemnity is conditional on your not making any admission, which might be prejudicial to such negotiations or litigation, and affording us all available assistance for such purposes, any expenses incurred by you in so doing being repaid by us. You on your part warrant that any design or instruction furnished or given by you shall not be such as will cause us to infringe any Letters Patent, Registered Design or Trademark in the execution of your order.
16. DETERMINATION OF A CONTRACT
If you shall make any arrangement or composition with creditors, or commit any act of bankruptcy, or if any petition or receiving order in bankruptcy shall be presented or made against you, or if, being a limited company, any resolution or petition to wind up the company’s business (other than for the purpose of amalgamation or reconstruction) shall be passed or presented, or if a receiver or manager shall be appointed of your company’s undertaking, property or assets, we shall have the right forthwith to determine the contract, and upon written notice of such determination being posted to your last known address, the contract shall be deemed to have been determined.
17. APPLICABLE LAW AND JURISDICTION
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.