ALLTUBE ENGINEERING LIMITED
Terms and Conditions of Sale
1.1 In these conditions, unless the context requires otherwise:
1.2 ‘Buyer’ means the person who buys or agrees to buy the goods from the Seller;
1.3 ‘Conditions’ means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;
1.4 ‘Delivery Date’ means the date specified by the Seller when the goods are to be delivered;
1.5 ‘Goods’ means the goods, articles and materials which the Buyer agrees to buy from the Seller;
1.6 ‘Services’ shall include any design or other services supplied pursuant to the Contract;
1.7 ‘Special Goods’ means Goods made or adopted specifically to the Buyer’s designs and specifications; and
1.8 ‘Seller’ means Alltube Engineering Limited
2 Conditions applicable
2.1 These Conditions shall apply to all contracts for the sale of Goods and/or Special Goods by the Seller to the Buyer to the exclusion of all other terms and conditions including any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document.
2.2 All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.
2.3 Acceptance of delivery of the Goods shall be deemed conclusive evidence of the Buyer’s acceptance of these Conditions.
2.4 Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.
2.5 Any contract between the Seller and the Buyer (“the Contract”) shall incorporate and be subject to these Conditions to the exclusion of all other terms and conditions whether expressed or implied and in so far as such exclusion is lawful. Any term or condition in the Buyer’s order which is inconsistent with these conditions shall, unless expressly confirmed in writing by a duly authorised representative of the Seller be of no effect.
Unless otherwise provided in the Contract:-
3.1 The price of the Goods and Services is exclusive of Value Added Tax which will charged at the rate applicable on the date of the Seller’s invoice
3.2 The price of the Goods excludes the cost of carriage unless otherwise expressly stated in writing in the Contract. If the price of the Goods includes the cost of carriage the method of carriage will be by the means most convenient to the Seller.
3.3 Where the price has been quoted based on stated production runs and specific delivery periods the Seller reserves the right to vary them if the Buyer changes its requirements.
3.4 The cost of any variation or modification of the Goods or Services requested after the acceptance of order shall, if accepted by the Seller, be borne by the Buyer.
4 Delivery and Risk
4.1 Delivery of the Goods shall be made at the place specified in the Contract or as 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 specified or agreed the delivery shall take place at the Seller’s place of business immediately prior to loading for dispatch.
4.2 The Seller shall be entitled to deliver by way of installments and to invoice the Buyer for each installment dispatched.
4.3 Where costs charges or expenses are incurred by the Seller as a result of delay caused by any act or omission of the Buyer or as a result of special requirements or stipulations not contained within the Contract the Seller shall have the right to charge for its additional costs.
5.1 Notwithstanding the delivery of possession of the Goods and the passing of risk in the Goods to the Buyer the Goods shall not pass from the Seller until:-
5.1.1 the price of the Goods and/or Services comprised in this Contract has been paid in full; and
5.1.2 all other money due from the Buyer to the Seller on any other account has been paid or satisfied in full.
5.2 Until the title to the property in the Goods passes to the Buyer in accordance with clause 5.1 the Buyer shall hold the Goods and each of them on a fiduciary basis as bailee for the Seller. The Buyer shall store the Goods (at no cost to the Seller) separately from all other goods in its possession and marked in such a way that they are clearly identified as the Seller’s property
5.3 Notwithstanding that the Goods (or any of them) remain the property of the Seller the Buyer may sell or use the Goods in the ordinary course of the Buyer’s business at the full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller’s property by the Buyer on the Buyer’s own behalf. The Buyer shall deal as principal when making such sales or dealings. Until the property in the Goods passes from the Seller the entire proceeds of sale or otherwise on the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller’s money.
5.4 The Seller shall be entitled to recover the price (and VAT) notwithstanding that property in the Goods has not passed from the Seller.
5.5 Until such time as property in the Goods passes from the Seller the Buyer shall upon request deliver up such of the Goods as have not ceased to have been in existence or resold to the Seller. If the Buyer fails to do so the Seller may enter upon any premises owned occupied or controlled by the Buyer where the Goods are situated and repossess the Goods. On making such request the rights of the Buyer under clause 5.3 shall cease.
5.6 The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Seller. Without prejudice to the rights of the Seller, if the Buyer does so all sums whatever owing by the Buyer to the Seller shall forthwith become due and payable.
5.7 The Buyer shall insure and keep insured the Goods to the full price against “all risks”.
6.1 The Seller will use reasonable endeavors to comply with any date or dates for dispatch or delivery of Goods or the completion of its Services. Failure to meet such dates shall not constitute a breach of the Contract.
6.2 In the event that the Seller is prevented or hindered from performing the Contract or any part thereof by any circumstances beyond its reasonable control the Seller shall not be liable for any direct or consequential loss or damage suffered by the Buyer as a result.
6.3 In the event that Goods are delivered in installments in accordance with the Contract then each installment shall constitute a separate contract to which these conditions shall apply.
6.4 Where Goods are to be supplied or delivered by the Seller in accordance with periodic delivery schedules or similar notifications the Buyer shall not be entitled to cancel or vary a firm requirement without the prior written consent of the Seller and the Seller shall be entitled to reimbursement of any resulting additional costs and expenses.
6.5 In the event that performance of a Contract is suspended or delayed through a default of the Buyer then the Seller shall be entitled to payment at the Contract rate for services already performed, goods supplied or ordered and any other reasonable additional costs thereby incurred. In the event that the Buyer fails to collect or accept delivery of the Goods or any part thereof within 28 days of the same being notified to the Buyer that they are ready and available for collection or delivery the Seller shall be entitled (without prejudice to its other remedies) to sell or at its option destroy the Goods and to apply the proceeds or scrap value towards payment of all sums due to the Seller under the Contract.
7.1 Without prejudice to the Buyer’s rights under condition 12 the Buyer shall be deemed to have accepted the Goods and be bound to pay for them unless written notice of rejection thereof is received by the Seller within 21 days of delivery.
7.2 The Seller should (following such notification) be provided with the opportunity to inspect the Goods and verify the validity of such rejection before any part of the Goods are used processed or sold.
8.1 Each Contract shall be subject to the Seller being satisfied as to the Buyer’s credit worthiness.
9.1 The Contract price for the Goods and/or Services shall be payable as provided in the Contract and on such dates as shall be specified in the Contract, if no dates are specified then the price shall be payable not later than the last day of the month following the month of delivery or supply of the Goods and/or Services.
9.2 Where Goods and/or Services are delivered or performed by installments the Buyer shall be obliged to make payment for each installment upon the terms set out in condition 9.1.
9.3 The time stipulated for payment shall be of the essence of the Contract.
9.4 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.
9.5 Interest on overdue invoices shall accrue from the date repayment becomes due from day to day until the date of payment at the Law Society Interest Rate and shall accrue at such rate after as well as before any judgment.
10 Drawings and Specifications
10.1 Subject to the terms of these conditions Goods supplied by the Seller will comply with the specification and standard, if any, stated in the Contract. In the event of the Goods failing to achieve and comply with such specification and/or standard the Seller shall be entitled to a reasonable period and reasonable facilities to enable it to bring the Goods up to the stated specification and/or standard.
11.1 To the extent that the Contract provides for testing and inspection of the Goods or Services prior to delivery then upon the Seller giving notice of the availability of the Goods for inspection and/or testing the Buyer shall inspect and/or test the Goods within seven days of such notice. In the event that the Buyer does not inspect or test the Goods within the specified time or if within 14 days of completion of such testing and inspection the Buyer does not notify the Seller in writing of a problem relating to the Goods or Services then the Buyer shall be deemed to have accepted the Goods and is not entitled to reject the Goods on the basis of matters that would or should have been revealed in relation to such testing or inspection.
12.1 Where any Goods or Services are shown to the reasonable satisfaction of the Seller to be defective by reason of faulty materials or workmanship within a period of 12 months from the date of their original dispatch or supply (fair wear and tear excepted) the Seller shall at its option:-
12.1.1 supply replacements free of charge and/or
12.1.2 make a refund and/or
12.1.3 require the Buyer to retain the Goods and Services and grant to the Buyer a reasonable allowance in respect of such defects.
18.104.22.168 the Buyer notifies the Seller in writing within 14 days of becoming aware of any such defect; and
22.214.171.124 if so required by the Seller all defective Goods are first returned to the Seller’s premises; and
126.96.36.199 the Goods have been properly and correctly stored and/or used by the Buyer; and
188.8.131.52 the liability of the Seller under this condition 12.1 shall be accepted by the Buyer in substitution for and to the exclusion of any other claim for direct loss which the Buyer has or may have.
12.2 The liability of the Seller for claims for direct injury loss or damage arising out of or in connection with any defect in the Goods and/or Services or any act omission neglect or default of the Seller its servants or agents in the performance of the Contract shall be limited to the cost of the Goods or Services.
12.3 The Seller shall not be liable for any claims for indirect economic or consequential loss made by the Buyer against the Seller howsoever arising.
13 Intellectual Property and Customer Design
13.1 The Seller accepts no responsibility for the accuracy or suitability of patterns, designs, tools, drawing, particulars or specifications relating to Special Goods which are supplied by the Buyer and the Seller shall be entitled to accept the same as being without defect, nor shall the Seller be responsible for quality or fitness for purpose of Special Goods.
13.2 The Buyer represents and warrants to the Seller that neither the Special Goods nor the manufacture thereof by the Seller will infringe any patent copyright, registered design, design right or any other proprietary right (“the Proprietary Rights”) of any third party.
13.3 The Buyer further undertakes to indemnify the Seller and keep it indemnified against all actions, proceedings, claims, costs, loss, damages or expenses whatsoever in respect of any infringement by the Seller of any proprietary rights in respect of any defect in Special Goods save for those arising from the negligence of the Seller.
14 Health and Safety
14.1 The Seller will make available all such information and revisions as is appropriate relating to the Goods and any material supplied as is in its possession in order to ensure that as far as is reasonably practicable they are safe and without risk to health at work.
14.2 The Buyer shall take such measures as shall be appropriate to ensure that the Goods are at all times safe and without risk to health. In particular the Goods and/or any materials provided shall only be properly used when they are used in accordance with any relevant information or advice relating to their use which has been communicated to the Buyer pursuant to this clause.
14.3 The Seller shall not be liable to the Buyer in any civil proceedings brought by the Buyer against the Seller under any Health and Safety Regulations made pursuant to statute where an exclusion of liability is permitted by law.
14.4 The Buyer shall indemnify and keep indemnified the Seller in respect of any liability arising in connection with the Goods or Services incurred directly or indirectly by the Seller under statute or in any regulations orders or directions made there under.
15 Insolvency and Breach of Contract
15.1 In the event that the Buyer fails to make payment for the Goods in accordance with this Contract or commits any other breach of this Contract or if any distress or execution shall be levied upon any of the Buyer’s Goods or if the Buyer offers to make any arrangements with its creditors or if any bankruptcy petition is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or if being a limited company any resolution or petition to wind up the Buyer (and for the purposes of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver, administrator, administrative receiver or manger shall be appointed over the whole or any part of the Buyer’s business or assets or if the Buyer shall suffer any analogous proceedings all sums outstanding in respect of the Goods shall become payable immediately. The Seller may in its absolute discretion or without prejudice to any of the rights which it may have:-
15.1.1 suspend all future deliveries of Goods to the Buyer and/or terminate the Contract without liability upon its part; and/or
15.1.2 exercise any of its rights pursuant to condition 5.
If at any time any part of any one or more of these conditions is held to be or becomes void or otherwise unenforceable for any reason under any applicable law the same shall be deemed omitted here from and the validity and/or enforceability of the remaining provisions of these conditions shall not in any way be affected or impaired thereby.
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.
These conditions and each and every Contract made pursuant thereto shall be governed by and construed in all respects in accordance with the Laws of England and the Seller and the Buyer irrevocably submit to the exclusive jurisdiction of the English Courts