Terms And Conditions
CONDITIONS OF SALE
1.1 In these Conditions:
“Seller” means A.M. TRANSFORMERS LIMITED.
“Buyer” means the person whose order is accepted by the Seller.
“Goods” means all goods, which are supplied, to the Buyer by the Seller under any contract between them.
“Conditions” means the standard terms and conditions of sale set out in this document and including any special terms and conditions agreed in writing between the Buyer and the Seller.
“Contract” means any contract between the Seller and the Buyer for the purchase and sale of the Goods.
1.2 Any reference in these Conditions to any provision of a statute or statutory instrument shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation. 2.
2. Basis for Sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any order of the Buyer, which is accepted by the Seller. By placing an order for goods the Buyer shall be deemed to have accepted these conditions, which shall govern the Contract to the exclusion of any other terms and conditions.
2.2 No variation to the Contract shall be binding unless agreed in writing by the authorized representatives of the Buyer and the Seller.
2.3 The Seller’s employees or agents are not authorized to make any representations concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representation which is not so confirmed.
2.4 The Seller shall not be liable for any advice given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods unless such advice is confirmed in writing by the Seller.
3. Formation of Contract and Specifications
3.1 A quotation by the Seller does not constitute an offer and the Seller reserves the right to withdraw or revise any quotation at any time prior to the Seller’s acceptance of the Buyer’s order.
3.2 The contract shall be formed when the Buyers order number is accepted by the sellers authorized representatives subject to these Conditions.
3.3 The quantity and description of the Goods shall be as set out or referred to in the Seller’s specification.
3.4 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements, or where the Goods are to be supplied to the Seller’s specification, which do not materially affect the quality or performance of the Goods. The buyer accepts responsibility that the goods ordered and subsequently delivered are satisfactory and appropriate for the buyers application.
3.5 The Buyer shall indemnify and keep indemnified the Seller fully on demand against any and all losses, damages, costs and expenses incurred by or awarded against the Seller as a result of the carrying out of any work required to be done to the Goods in accordance with the requirements or specifications of the Buyer involving an infringement or alleged infringement of any rights of any third party.
3.6 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all losses (including without limitation loss of profit), costs (including without limitation the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
3.7 For multiple orders the contract is divisible. The work performed or obligations taken at each stage during the currency of the contract shall be invoiced separately. Each invoice for work performed or obligations undertaken at each stage shall be payable by the buyer in full, in accordance with the terms of payments provided for herein, without reference to and notwithstanding any defect or default in the work performed or to be performed or obligations at each stage.
4.1 The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted, the price listed in the Seller’s published price list current at the date of delivery.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase and the cost to the Seller which is due to any factor beyond the control of the Seller including (without limitation) alterations in taxation, increases in the cost of labour, materials or other costs of manufacture, any change of delivery dates, quantities or specifications of the Goods which are requested by the Buyer, or any delay caused by any instructions of the Buyer, or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Unless otherwise agreed in writing, all prices are given by the Seller on an ex-works basis and, where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
4.4 The price is exclusive of Value Added Tax and all other taxes and duties (apart from corporation taxes referable to income or capital gains of the Seller), which shall be payable by the Buyer.
5.1 Unless otherwise agreed in writing, the Seller shall be entitled to invoice the Buyer for the price of the Goods, including any transport, packaging and insurance charges, on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price of the Goods at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2 Unless otherwise agreed in writing, the Buyer shall pay the price of the Goods in full within 30 days of the date of the Seller’s invoice, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The Buyer shall not be entitled to make any deduction from such payment or exercise any right of set-off or contribution howsoever arising. The time of payment of the price shall be of the essence of the Contract.
5.3 If in the opinion of the Seller the credit-worthiness of the Buyer shall have deteriorated prior to delivery or collection (as the case may be), the Seller may require full or partial payment of the price prior to delivery or collection (as the case may be) or the provision of security for payment by the Buyer in a form acceptable to the Seller. 5.4 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall (at its option) be entitled to:
5.4 treat the Contract as repudiated by the Buyer and suspend any further deliveries to the Buyer, claim damages from the Buyer and charge the Buyer interest (both before and after any judgment) on the amount unpaid, at the rate of four per cent per month above Midland Bank Plc. base rate from time to time, until payment in full is made; or 5.4.2 affirm the contract, claim damages from the Buyer and charge the Buyer interest (in accordance with Clause 5.4. 1).
6.1 Delivery of the Goods shall be at the Seller`s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection, unless otherwise agreed by the Seller in writing.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing.
6.3 If the Seller is satisfied that the Goods have been short delivered, the Seller shall at its option:
6.3.1 make up any short delivery by despatching to the Buyer such Goods as the Seller is satisfied were not delivered; or
6.3.2 allow the Buyer credit in respect thereof. The Seller’s liability shall be limited to making up the delivery or allowing credit as above.
6.4 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and defective delivery by the Seller of any one or more of the instalments in accordance with these Conditions shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyers reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including handling and insurance) of storage; or
6.5.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
The risk of loss and damage to the Goods shall pass to the Buyer immediately upon delivery unless the Goods are to be collected by the Buyer when the risk of loss and damage to the Goods shall pass to the Buyer upon the Seller notifying the Buyer that the Goods are ready for collection.
8.1 Notwithstanding delivery and the passing of risk in the Goods, the property in the Goods shall not pass to the Buyer and shall remain in the Seller until either such time as the Buyer shall have paid to the Seller the full price for all Goods sold by the Seller to the Buyer under any and all contracts between them or the Seller shall have written to the Buyer notifying the Buyer that the property in the Goods has passed to the Buyer.
8.2 Until such payment the Buyer shall carefully store the Goods in such a way as to enable them to be identified as the property of the Seller and keep them insured against all loss or damage howsoever caused at its own expense.
8.3 Prior to the property in the Goods passing to the Buyer, the Buyer shall not attach the Goods to any real property without the prior written consent of the Seller.
8.4 The Seller reserves the immediate right of re-possession of any Goods to which the Seller has retained title as aforesaid exercisable at any time after delivery or collection of the Goods and the Buyer hereby grants an irrevocable right and licence to the Seller’s servants and agents to enter upon all or any premises where the Goods are stored without prior notice for this purpose.
8.5 The Buyer may in the ordinary course of its business: 8.5.1 process the Goods in such fashion as it may wish and/or incorporate them in or with any other product or products; and 8.5.2 sell the Goods to any third party as principal but not as the agent for the Seller.
9.1 Any claim by the Buyer which is based on any defect in the quality or fitness for purpose of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 14 days of delivery. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
9.2 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or fitness for purpose of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to repair or replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price).
9.3 Subject to the foregoing all conditions, warranties and representations expressed or implied by statute, common law or otherwise in relation to the Goods (apart from terms implied as to title under the Sale of Goods Act 1979 or terms implied under the Consumer Protection Act 1987, as amended) are hereby excluded and the Seller shall be under no liability to the Buyer for any loss (including loss of profits) or for any other consequential loss, damage or injury direct or indirect resulting from defective material faulty workmanship or otherwise howsoever arising and whether or not caused by the negligence of the Seller or its employees or agents.
9.4 Where the Goods were sold under a consumer transaction, the statutory rights of the Buyer are not affected by this
Third Party Rights The Seller and the Buyer intend that the Seller shall transfer to the Buyer only such title as the Seller may have in the Goods and the Seller shall have no liability to the Buyer in the event of the Goods infringing or being alleged to infringe the rights of any third party.
11. Trade Marks
The Buyer will not do or authorize any third person to do any act which would or might damage or be inconsistent with the trade marks used by the Seller in relation to the Goods or to the goodwill associated therewith and, in particular, will not do or authorize the alteration, obliteration, covering up or incorporation of other marks (in whole or in part) on to the Goods. All advertising, promotion and selling materials supplied by the Seller to the Buyer shall remain the property of the Seller and the Buyer shall not permit any other person to make use thereof.
12. Force Majeure
12.1 The Seller shall not be liable to the Buyer for any loss or damage which may be suffered by the Buyer as a direct or indirect result of the supply of the Goods by the Seller being prevented, hindered, delayed or rendered uneconomic by reason of circumstances or events beyond the Seller’s reasonable control including (but not limited to) Act of God, war, riot, strike, lock-out, trade dispute or labour disturbance, accident, break-down of plant or machinery, fire, flood, storm, difficulty or increased expense in obtaining workmen, materials or transport or other circumstances affecting the supply of the Goods or of raw materials therefor by the Seller’s normal source of supply or the manufacture of the Goods by the Seller’s normal means or the delivery of the Goods by the Seller’s normal route or means of delivery.
12.2 If due to such circumstances or events the Seller has insufficient stocks to meet all its commitments the Seller may apportion available stocks between its customers at its sole discretion.
13. Licences and Consents
If any licence or consent of any government or other authority shall be required for the acquisition, carriage or use of the Goods by the Buyer the Buyer shall obtain the same at its own expense and if necessary produce evidence of the same to the Seller on demand. Failure so to do shall not entitle the Buyer to withhold or delay payment of the price. Any additional expenses or charges incurred by the Seller resulting from such failure shall be for the Buyer’s account.
14. Insolvency of Buyer
14.1 This Clause applies if-.
14.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction) or passes a resolution for its voluntary winding up or has a petition for its compulsory winding up presented against it;
14.1.2 an encumbrancer takes possession, or a receiver or administrative receiver is appointed, of any of the property or assets of the Buyer; or
14.1.3 the Buyer ceases, or threatens to cease, to carry on business; or
14.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer or any other matter which in the opinion of the Seller may prejudice its rights against the Buyer.
14.2 If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
15.1 Failure by the Seller to exercise or enforce any rights hereunder shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
15.2 If any provision or part of a provision of these conditions shall be, or be found by any court of competent jurisdiction to be, invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of these conditions, all of which shall remain in full force and effect
15.3 Any notice hereunder shall be deemed to have been duly given if sent by prepaid first class registered post or telex to the party concerned at its registered office or principal place of business or such other address as may have been notified pursuant to this provision to the party giving the notice. Notices sent by first class registered post shall be deemed to have been given seven days after despatch and notices sent by telex shall be deemed to have been given on the date of despatch.
15.4 The Contract shall be governed by and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English Courts provided that Seller may sue the Buyer in the courts of any country, such proviso being for the sole benefit of Seller.