TERMS AND CONDITIONS OF SALE
The Company means Patterson & Rothwell Limited. The Customer means the person, firm or company, with whom the Contract is made. The Contract means the Contract between the Company and the Customer, into which these conditions are incorporated. The Quotation means the written or oral quotation made by the Company to the Customer, or to others on the Customer’s behalf. The Order means the written or oral order made by the Customer. The Confirmation of Order means the written confirmation given by the Company to the Customer whether before or after delivery of the Goods. The Goods means the goods described in the Quotation, or subsequently supplied to the Customer by the Company.
- FORMATION OF CONTRACT
- All quotations made by the Company shall be deemed to include these conditions, except insofar as they are inconsistent with any special terms or conditions contained in the Quotation or the Confirmation of Order (as the case may be).
- The Quotation does not form an offer capable of acceptance by the Customer but merely an invitation to the Customer to make an offer in accordance with its terms.
- Any terms or conditions contained in the Order which are inconsistent with these conditions shall not form part of any contract between the Company and the Customer, unless accepted by the Company in writing in the Confirmation of Order.
- Cancellation of the Contract by the Customer will be a breach of contract entitling the Company to compensation. No variation of the Contract shall become binding unless confirmed in writing by the Company.
- Where the quotation contains documents and particulars produced by the Company, including (without prejudice to the generality of the foregoing) illustrations, designs, drawings and weight and technical specifications and ratings, such document and particulars shall be deemed to be approximate only unless a statement to the effect that they are final and definitive is expressly made. The Customer undertakes to observe strict secrecy with such documents and particulars, and not to disclose them to others, and the Company reserves all rights to copyright and all other industrial property rights, including the ownership of the actual documents submitted.
- If subsequent to any Contract between the Company and the Customer into which these conditions are incorporated, any contract for the supply of goods similar to the Goods is made between the same parties whether the same is by letter, telegram, telex, orally or otherwise without express reference to any conditions, such contract shall be deemed to be subject to these conditions.
- Insofar as these conditions are in any circumstances regarded as or held to constitute the terms of a counter-offer the Customer shall be taken to have accepted such counter-offer by accepting physical delivery of any of the Goods from the Company.
- DESIGNS AND DRAWINGS
- Where the Company prepares designs or drawings to meet the Customer’s requirements, it shall be the Customer’s responsibility to ensure the correct functioning of the Goods.
- Where the Goods are manufactured:
(i) To designs or drawings submitted by the Customer or:
- To designs or drawings prepared by the Company which shall have been approved by the Customer or:
- With the use of tools or goods supplied by the Customer.
then and in any such case, the Customer shall indemnify the Company against any liability arising directly or indirectly from any inadequacy of design or any inadequacy or defect of tooling or goods supplied by the Customer, including (without prejudice to the generality of the foregoing) any liability costs and expenses arising from the negligence of the Company, or the breach by the Company of any condition warranty or undertaking contained in this or any other contract or implied by law or the breach by the Company of any statutory duty.
- The Company shall be entitled to cease to manufacture any of the Goods which are, or which appear to be, an infringement of any letters patent, registered designs, trade marks or copyright or other industrial or intellectual property rights of any person, firm or company other than the parties to the Contract. The Customer shall pay the Company the value of work done on and the materials used in the manufacture of the Goods, prior to such cessation of work and shall indemnify the Company against all claims made by any person against the Company arising out of such infringement and all costs, expenses and other losses arising therefrom.
- Where the Customer requires modifications or alterations to his design or tooling, the Customer shall be responsible to pay all
additional costs deemed necessary, these alterations may effect the Customers tool warranty as given by the Company.
- Where the Goods are to be manufactured to designs, drawings or specifications to be supplied by the Customer, these shall be supplied in reasonable time to enable the Company to complete delivery within the period indicated.
- All prices quoted are Ex-Works, but exclusive of VAT. The Customer shall be responsible for any additional cost arising from part deliveries or express despatch.
- Unless otherwise stated, all prices are quoted and payable in sterling. Payment shall be made to the Company.
- Unless otherwise provided, the price for each delivery shall be paid in full on or before the last day of the month, following the date of invoice.
- The Company will not be liable to pay interest on any payment made by the Customer before the same becomes due, but without prejudice to its rights to claim damages the Company shall be entitled (without any prior notification) to charge interest at the rate of four per cent above HSBC Base Lending Rate for the time being, in force on any sums which remain after the same shall become due.
- The Customer shall not be entitled to withhold payment of any amount payable under the contract to the Company because of any disputed claim of the Customer in respect of faulty goods or any other alleged breach of contract, nor shall the Customer be entitled to set off against any amount payable under the Contract to the Company any monies which are not then presently payable by the Company, or for which the Company disputes liability.
- The Company will endeavour to deliver the precise quantity of the Goods ordered, but the Customer will accept a margin of ten per cent under or over the quantity ordered, and shall make payment accordingly. In the event of the Company delivering less than ninety per cent or more than one hundred and ten per cent of the quantity ordered, the Customer shall not be entitled to withdraw from the Contract, but the Company shall (at the request of the Customer), make up the deficiency or (as the case may be) accept the return of the excess, so that the quantity delivered falls within the aforesaid margins.
- The Company shall (whether or not the Customer has made or purported to make a specific appropriation) in its absolute discretion, be entitled to appropriate all payments made to it, whether under the Contract or otherwise, to such outstanding invoices that have been previously rendered to the Customer, as it shall so decide. In the absence of any specific appropriation by the Company (which shall include appropriation made by the Company in its accounting records) such payments shall be deemed to discharge earlier invoices first.
(a) Title to and property in the Goods shall remain vested in the Company (notwithstanding the delivery of the same, and the passing of the risk thereon to the Customer) until the price of the Goods comprised in the Contract, and all other money due from the Customer to the Company on any account, has been paid in full.
- Until title passes to the Customer as aforesaid , the following provisions shall apply
(i) The Company may, at any time without prior notice to the Customer, repossess and resell the Goods and any other Goods supplied under any other Contract, if any of the events specified in clause 5 (c) below occurs. For the purpose of exercising its rights under this sub-paragraph, the Company, its employees or agents, together with all vehicles and plant considered by the Company to be necessary shall be entitled, at any time without prior notice to the Customer, to free and unrestricted entry upon the Customer’s premises and/or other locations where the Goods are situated.
- The Customer shall store the Goods in a proper manner without charge to the Company, and ensure that they are clearly identified as belonging to the Company. The Company shall be entitled to examine the Goods in storage at any time during normal business hours, and upon giving the Customer reasonable notice of its intention to do so.
- The risk in respect of the Goods shall pass to the Customer at the time of delivery, and the Customer will insure the Goods with a reputable insurer, against all commercial risks (including theft and damage by fire and water) to the full value thereof and, until payment of all sums due under the Contract, and all other money due from the Customer to the Company on any other account, will produce such evidence of coverage as may reasonably be required by the Company on request.
- The rights and remedies of the Company under this Clause 5 are in addition to, and shall not in any way, prejudice, limit or restrict any other rights or remedies of the Company, under the Contract.
- The Company’s right to repossess and resell the Goods supplied or seize all tooling held by the Company on behalf of the Customer under any other Contract, shall arise in any of the following circumstances:-
(i) If a sum payable under the Contract is not paid by the Customer within 14 days of its due date, or:
- If the Customer fails to remedy (where it is capable of being remedied), or persists in any breach of any of its obligations under the Contract (other than the obligation to make payment), after having been required in writing by the Company to remedy, or desists from such breach within a period of 30 days, or:
- If the Customer has any distress or execution levied on its assets, which is not paid out within 7 days of its being levied, or:
- If the Customer (being a Company) is deemed to be unable to pay its debts within Section 123 of the Insolvency Act 1986, or calls a meeting or presents or has presented a petition to wind up, or presents or has presented a petition to appoint an Administrator, or has an Administrative Receiver, Receiver or Manager appointed to any part of its business, undertaking, property or assets or:
- If the Customer (being an individual or partnership) or any partner in the Company appears to be unable to pay his debts within Section 268 of the Insolvency Act 1986, or presents his own, or has presented against him a bankruptcy petition, or:
- If the Customer proposes a voluntary arrangement within the meaning of Section 1 or Section 253 of the Insolvency Act 1986, or:
- If the Customer undergoes any procedure analogous to that set out in paragraphs (iii) to (vi) inclusive of this sub-clause in the country which it is constituted.
- Delivery shall, for the purpose of these conditions, be whichever shall first occur of the following:-
- Actual delivery to the Customer, its carriers, or contracts, or:
- Collection by the Customer, its carriers, agents or contractors from the Company’s place of business.
- Although the Company will use its best endeavours to deliver according to the Contract, any date or period which may be agreed for the delivery is intended as an estimate only, and the Company cannot therefore be held liable for direct, or indirect, loss to failure to deliver on any specific date, or dates, or within any specified period.
- Unless otherwise agreed, the Goods shall be despatched to the Customer’s place of business.
- The Company shall be permitted to deliver the Goods (or any part thereof) before the delivery date, or the expiry of the delivery period, whichever the case may be.
- Where the Contract provides for delivery by instalment, each instalment shall be deemed to be subject to a separate contract, and non delivery or delay of delivery of any instalment, shall not affect the balance of the Contract, or entitle the Customer to cancel the same.
The risk passes to the Customer, as soon as the Goods are delivered, as defined in condition 6(a), provided that, in the event of the Goods being stored on behalf of, and at the specific request of the Customer, the risk in the Goods passes to the Customer from the date the storage commences.
- GUARANTEE AND EXCLUSIONS
- The Company undertakes, with the Customer, that it will (at the Company’s option), replace or allow credit for any of the Goods which are delivered to the Customer in a damaged state (unless the risk in the Goods shall have already passed to the Customers pursuant to condition 7), provided that the Customer notifies the Company within 5 days of receipt of the Goods and provided further the Company is afforded a reasonable opportunity of inspecting the Goods so damaged at the Customer’s premises.
- The Company undertakes with the customer, that it will (at the Company’s option) replace or allow credit for any defects in the Goods (apart from where the Goods are delivered in a damaged state provided):
(i) The Company is notified of such defects within one month of the delivery, and: (ii) Such defect has not been caused by misuse, unfair wear and tear, accident or failure to properly maintain or store, or: (iii) The Company is afforded a reasonable opportunity to examine the Goods at the Customer’s premises in their alleged defective state before use, and: (iv) Upon such examination, the Goods prove to be of defective material (unless the material shall have been supplied by the Customer) or defective manufacture or design (unless the design shall have been submitted or approved by the Customer), and:
- That this condition 8(b) shall not form the subject matter of a claim for labour, or other expenditures nor for any direct, or consequential damages arising therefrom. This undertaking is personal to the Customer, and may not be assigned to any third party.
- Save as expressly provided in the Contract, no statutory or other warranty, condition, description or representation of any kind whatsoever on the part of the Company, including (but not limited to) any such as to the merchantability or fitness for any purpose of the Goods is given, or to be implied by the Contract, nor is any such warranty, condition, description or representation to be taken to have been given, or implied, from anything said or written in the negotiations, between the Company and the Customer, or their respective representatives, prior to the Contract:
- Save as aforesaid (and save insofar as the exclusion or restriction of the Company’s liability is absolutely prohibited by Section 2 (1) of the Unfair Contract Terms Act 1977), the Company shall be under no liability whatsoever to the Customer howsoever arising (including, but not limited to liability arising from the Company’s negligence or that of any person for whom the Company is vicariously liable) in respect of, or in connection with, any loss, injury or damage of any kind arising out of the Goods, or their use or operation.
- The Company’s total liability whatsoever for any claims of the Customer for which the Company may be liable shall in no event exceed the purchase price of the Goods with respect to which claim is made. The Company shall not in any circumstances be liable to the Customer for any incidental, consequential or special loss or damage.
- Customers are expected to fully insure any associated property consider as “their property” (tooling/materials) when held upon the
Company’s premise, any damage caused as a direct production issue will be covered and repaired by the Company’s own insurance All other damage will be the responsibility of the Customer irrespective of length of time held on the Company’s site(s)
The Customer shall indemnify and keep indemnified the Company from, and against, any liability of any kind to any third party howsoever arising (whether in contract, tort or otherwise and including, but not limited to, liability arising from the negligence of any person for whom the Company is vicariously liable) in respect or in connection with: (i) Any defect in the Goods.
- Any loss, injury or damage of any kind (whether direct, indirect or otherwise and including but not limited to any loss of profit and/or any incidental, consequential or special (loss or damage of any description) arising out of, in respect of in connection with the Goods, or their use or operation.
- PROPER LAW AND JURISDICTION
The Contract shall be deemed to be made in England and the construction, validity and performance on the Contract shall be interpreted in all respects by the Municipal Law of England and English Courts shall have the exclusive jurisdiction of any disputes thereunder.
The rights of the Company or the Customer 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.
In the event of any provisions, terms, and/or conditions herein contained, being unenforceable or void for any reason whatsoever, each provision, term or condition (including any sub-clause herein contained) shall be deemed to be severance from the remaining provisions, terms or conditions and such remaining provisions, terms or conditions shall remain in full force and effect.
The headings are for convenience only, and shall not affect the construction of these terms and conditions.