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1. INTERPRETATION
"Buyer" means the person or company whose Order for the Products is accepted by the Company;
"Company" means Delavan Limited;
"Contract" means any contract between the Company and the Buyer for the sale and purchase of the Products;
"Order" means the written purchase order by the Buyer;
"Products" means any products which the Company is to supply to the Buyer (including any of them or any part of them).
2. BASIS OF SALE
2.1 All contracts for the sales of products made by or on behalf of the Company will be on these terms and conditions(the "Conditions") to the exclusion of all other terms and conditions (including any
terms or conditions which the Buyer purports to apply under any purchase orders, confirmation of order or similiar document).
2.2 Orders are in all cases subject to written acceptance by the Company. No addition to or variation of these Conditions and no oral stipulation or representation shall be binding on the Company unless
expressly agreed to in writing and signed by a director or the secretary of the Company on its behalf.
2.3 Save as otherwise provided no Order may be cancelled by the Buyer once it has been accepted by the Conpany except with the written agreement of the Company and on terms that the Buyer shall
indemnify the Company in full against all losses (including loss of profit), costs, damages, charges and expenses suffered or incurred by the Company as a result of such cancellation.
3. PRICE
3.1 Prices of the products shall be those agreed or quoted by the Company. The Company shall have the right to change its prices or withdraw any Products from the range of products offered by the
Company without notice, except where the Company has expressly stated in writing that a price is firm and during what period the price will be held firm.
3.2 Except as otherwise expressly stated, all prices quoted are (i) exclusive of any value added tax or any other applicable tax which the Buyer shall pay in addition when it is due to pay for the
products. All Orders are subject to minimum charge of £50.00.
4. PAYMENT
4.1 The Company may invoice the Buyer for the products at any time after delivery. Time for payment shall be of the essence. The Buyer shall pay the Company's invoice within 30 days of the date of the
invoice.
4.2 If the Buyer fails to make any payment under this Contract on the due date the Company shall be entitled (without prejudice to any other rights or remedy it may have) to cancel or suspend any
further deliveries to the Buyer under any Order and charge the Buyer interest on the amount unpaid from the due date until payment is made in full at the rate of 3% p.a. above the base rate for the time
being of HSBC PLC. All payments payable to the Company under this Contract shall become due immediately upon termination of this Contract despite any other provision.
5. DELIVERY
5.1 Delivery of the Products shall be made ex-works (Incoterms 2000). If carriage is required the Products shall be delivered by such means as the Company thinks fit unless the Buyer has specified in
its Order the details of the contract with the carrier which it reasonably requires having regard to the nature of the Products and the other circumstances of the case. The costs of such transport shall
be bourne by the Buyer. Where the Buyer arranges for carriage the Buyer will take delivery of the Products within 3 days of the company giving it notice that the Products are ready for delivery.
5.2 THE COMPANY SHALL ENDEAVOUR TO COMPLY WITH DELIVERY DATES QUOTED BY IT BUT TIME FOR DELIVERY SHALL NOT BE OF THE ESSENCE AND THE COMPANY,
SUBJECT TO THE OTHER PROVISIONS OF THESE CONDITIONS, SHALL NOT BE LIABLE FOR ANY FAILURE DELAY OR ERROR IN DELIVERY NOR SHALL IT BE LIABLE FOR ANY
CONSEQUENTIAL LOSS (INCLUDING LOSS OF PROFIT) COSTS, DAMAGES, CHARGES OR EXPENSES ARISING DIRECTLY OR INDIRECTLY THEREFROM HOWEVER CAUSED.
5.3 If the Buyer fails to take delivery of any Products when they are ready for delivery or to provide adequate instructions, documents, licences or authorisations required to enable the Products to
be delivered on time (except because of the Company's fault) the Products will be deemed to have been delivered and (without prejudice to its other rights) the Company may:
(a) store or arrange for the storage of the Products until actual delivery or sale and charge the Buyer for all related costs and expenses (including, without limitation, storage and insurance); and/or
(b) following written notice to the Buyer, sell any of the Products at the best price reasonably obtainable in the circumstances and charge the Buyer for any shortfall below the price under the Contract.
6. RISK AND OWNERSHIP
6.1 Risk of damage to or loss of the Products shall pass to the Buyer upon delivery. Ownership of the Products shall not pass to the Buyer until the Company has received in full all sums due to it in
respect of (i) the Products and (ii) all other sums which are or which become due to the Company from the Buyer on any account.
6.2 Until ownership of the Products has passed to the Buyer, the Buyer shall
(a) hold the Products on a fiduciary basis as the Company's bailee;
(b) store the Products (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company's property;
(c) not destory, deface or obscure any identifying mark or packaging on or relating to the Products; and
(d) maintain the Products in a satisfactory condition insured on the Company's behalf for their full price against all risks to the reasonable satisfaction of the Company.
6.3 The Buyer may resell the Products before ownership has passed to it solely on the following conditions;
(a) any sale shall be effected in the ordinary course of the Buyer's business at full market value and the Buyer shall account to the Company accordingly; and
(b) any such sale shall be a sale of the Company's property on the Buyer's own behalf and the Buyer shall deal as principal when making such a sale.
6.4 The Company shall be entitled to recover payment for the Products notwithstanding that the ownership of any Products has not passed from the Company.
6.5 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Products are or may be stored in order to inspect them, or where the
Buyer's right to possession has terminated, to recover them.
7. INSPECTION
It shall be the responsibility of the Buyer to inspect and check the Products as soon as reasonably practicable after delivery to ensure that the quality, condition, quantity and specification of the
Products conform to the instructions in the Order. All returns of defective Products must be authorised in advance in writing by the Company and returned to the Company's place of business at the
Buyer's cost and risk.
8. WARRANTY
8.1 The Company warrants that (subject to the other provisions of these Conditions) upon delivery the Products will comply with the specification.
8.2 The Company shall not be liable for a breach of the warranty in condition 8.1 unless a claim is brought within 12 months from the date of delivery or 90 days from the date of installation whichever
is earlier.
8.3 The Company shall not be liable for a breach in condition 8.1 if;
8.3.1 the failure to comply with the specification arises because the Buyer failed to follow the Company's oral or written instructions as to the storage, installation, commissioning, use or maintenance
of the Products or (if there are none) good trade practice; or
8.3.2 the Buyer alters or repairs such Products without the written consent of the Company; or
8.3.3 the failure to comply with the specification arises from any design defect in any drawing, design or specification supplied or approved by the Buyer.
9. LIABILITY
9.1 The Company shall not be liable to the Buyer for any shortfall in the quantity of Products delivered unless the Buyer inspects the Products and notifies the Company of any claim within 14 days of
delivery and where any such valid claim is made the Company shall supply the shortfall free of charge at the Buyer's risk or at the Company's sole discretion, reduce the Company's invoice by the sum
equivalent to the shortfall but the Company shall have no further liability to the Buyer.
9.2 Where any valid claim is brought under condition 8.2 the Company shall either;
(a) replace the Product(s); or
(b) repair the Product(s); or
(c) refund to the Buyer the price of the Products (or a proportionate part of the price) free of charge save for transport costs or provide the Buyer with credit against future orders but the Company
shall have no further liability to the Buyer.
9.3 EXCEPT AS EXPRESSLY PROVIDED IN THESE CONDITIONS NO WARRANTY, CONDITION, UNDERTAKING OR TERM, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE
AS TO THE CONDITION, QUALITY, PERFORMANCE, DURABILITY OR FITNESS FOR PURPOSE OF THE GOODS IS GIVEN OR ASSUMED BY THE COMPANY AND ALL SUCH
WARRANTIES, CONDITIONS, UNDERTAKINGS AND TERMS ARE HEREBY EXCLUDED INSOFAR AS PERMITTED BY LAW. THE COMPANY SHALL NOT IN ANY CASE BE LIABLE
TO THE BUYER OR TO ANY OTHER PARTY FOR DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SIMILAR LOSS OR DAMAGE (INCLUDING ALL MANNER OF
COSTS, FEES AND EXPENSES INCLUDING LOSS OF PROFIT) ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE OR ANY OTHER CAUSE HOWSOEVER
EXCEPT AS EXPRESSLY PROVIDED IN THESE CONDITIONS AND INSOFAR AS PERMITTED BY LAW.
10. FORCE MAJEURE
The Company shall not be liable to the Buyer in any manner or be deemed to be in breach of this Contract because of any delay in performing or any failure to perform any of the Company's obligations
under this Contract if the delay or failure was due to any cause beyond the Company's reasonable control.
11. INSOLVENCY AND DEFAULT
If the Buyer does or fails to do anything which would entitle any person to appoint a receiver of the whole or any part of the Buyer's assets or which would entitle any person to present a Petition for
an Administration Order or the Winding-Up of the Buyer makes any composition with its creditors or suffers any execution to be levied upon its property, or ceases, or threatens to cease, to carry on
business or commit any breach of this or any other Contract between the Company and the Buyer, the Company may without prejudice to any of its other rights under these conditions stop any goods in
transit and/or suspend further deliveries forthwith and/or by notice in writing to the Buyer terminate the Contract.
12. WAIVER
No waiver by the Company of any breach of the Contract by the Buyer shall be construed as a waiver or any subsequent breach of the same or any other provision.
13. SEVERANCE
If any provision of these Conditions or any part thereof is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions
and the remainer of the provision in question shall not be affected thereby.
14. GOVERNING LAW AND JURISDICTION
These Conditions shall be governed by and construed in accordance with the laws of England and the parties hereby submit to the non-exclusive jurisdiction of the English courts.
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Acknowledgement of this order must be made by return of post.
We do not accept responsibility in respect of any orders other than those issued or confirmed on our official printed form, duly signed.
The vendors shall indemnify the buyers against all claims for royalties, damages or other losses due to the use of patented apparatus, devices or processes embodied therein, in connection with this order.
All drawings, designs and specifications and the copyrights shall be and remain the buyers property. Such drawings, designs and specifications shall be used by the vendor only for the purpose of fulfilling the buyer’s order and for no other purpose whatsoever and shall be returned intact to the buyer on demand. The vendor undertakes to manufacture and sell direct to the buyer, and to no other person, firm or company any parts manufactured to the buyer’s drawings and designs and to refer to the buyer any enquiries received for replacement of such parts.
This order is personal to the vendor to whom it is addressed and may not be assigned or sub-contracted to any other party without the Company’s prior written consent.
The buyers reserve the right to cancel this order without redress, if not executed within a reasonable time or within the time specified. Should any reason arise during the period of delivery rendering it likely that delivery will not be made within the contracted period then the vendor must inform us without delay. This notification however does not modify our rights arising from the late delivery.
The cost and responsibility for carriage shall be the vendors, unless otherwise agreed in writing, and shall be to our works or other specified site.
All goods or materials supplied are subject to our inspection and approval. Rejected goods or materials shall be held and returned at the vendors risk and expense. In the case of goods or materials delivered by the vendor not being of the stipulated quality, weight or measurement the buyer shall have the power to reject any such goods or materials and purchase elsewhere and any extra expense thus incurred shall be paid by the vendor to the buyers. The buyers reserve the right to inspect any goods or materials before despatch from the vendors premises, but such inspection shall not relieve the vendor from responsibility, liability and/or such guarantees as may be arranged, nor interpreted so as in any way to imply acceptance of such goods or materials.
All modifications to these Conditions of Purchase must in all cases be provided with our formal written assent without which they are in no way binding upon us. |