Fernite of Sheffield, Terms of Sale
1.1 In these Terms:-
“Buyer” means the person who accepts a Proposal for the sale of Goods or whose order for Goods is accepted by the Seller in writing or by the delivery of Goods to the Buyer
“Contract” means the contract for the sale and purchase of Goods
“Goods” means the goods which the Seller is to supply in accordance with these Terms
“Proposal” means the terms notified by the Seller to the Buyer on which the Seller is willing to sell Goods to the Buyer
“Seller” means Fernite of Sheffield Limited (Company Number: 3133576) whose registered office is Fernite Works, 1, Orgreave Road, Sheffield, S13 9LQ.
“Terms” means the standard terms of sale set out in this document and (unless the context otherwise requires) includes any special terms agreed in writing between the Buyer and the Seller
“working day” means any day (excluding Saturdays and Sundays) that UK clearing banks are open for business
1.2 A reference in these Terms to a provision of a statute 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 Terms are for convenience only and shall not affect their interpretation
1.4 The singular includes the plural and vice versa
1.5 “Brexit” means that during the Term of the Contract pursuant to Article 50 of the Treaty of Lisbon the UK leaves the European Union.
- AGREEMENT
2.1 The Seller shall sell and the Buyer shall purchase the Goods described in the Proposal on the terms set out in the Proposal, subject to these Terms, which shall govern the Contract to the exclusion of any other terms subject to which any Proposal is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer
2.2 No variation of these Terms shall be binding unless agreed in writing between an authorised representative of the Buyer and of the Seller
2.3 The Seller’s employees or agents are not authorised 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 any representations which are not contained in a Proposal or specifically confirmed in writing by the Seller in relation to a specific Contract, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation
2.4 It is the responsibility of the Buyer to select Goods whose specification meets the Buyer’s requirements. Any advice or recommendation 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 which is not confirmed in writing by the Seller is followed or acted on entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller
- ORDERS AND SPECIFICATIONS
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless confirmed in writing by the Seller’s authorised representative or unless the Goods are delivered to the Buyer
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms
3.3 The quantity, quality and description of the Goods and any specification for them shall be as set out in the Proposal (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller). Manufacturing tolerances are to ISO 2768 Part 1 Class C and Part 2 Class L unless otherwise stated.
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with, or paid or agreed to be paid by the Seller in settlement of, any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification
3.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or regulatory or other lawful requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance
3.6 No order which has been accepted by the Seller may be cancelled or changed by the Buyer except with the agreement in writing of the Seller
- PRICE OF THE GOODS
4.1 The price of the Goods shall be the price stated in a Proposal. All prices quoted are valid for 30 days only
4.2 The Seller reserves the right, by giving written notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is 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 Except as otherwise stated in a Proposal, 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 any value added tax. If applicable, the Buyer shall be liable to pay to the Seller any value added tax payable in addition to the price
- TERMS OF PAYMENT
5.1 The Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after the date on which an order is accepted by the Seller
5.2 The price of the Goods shall be payable on the date of invoice. If any invoice is not paid within 30 days of the due date of the Seller’s invoice, the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only on request. The Seller shall inform the Buyer of the amount of the Buyer’s credit limit and, if that credit limit is exceeded, all outstanding invoices will become immediately payable by the Buyer. Until the Buyer is informed of its credit limit by the Seller, the Buyer shall make payment on a pro forma basis
5.3 If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the Seller may:-
(1) cancel the Contract or suspend any further deliveries to the Buyer;
(2) appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer);
(3) If the Price is not paid on the due date for payment a late payment charge shall be payable on the amount owing at the rate of 5% of the total amount.
(4) If the price is not paid within 30 days of the due date, then in addition to the late payment charge payable in accordance with clause 5.3 (3) an additional 1% charge shall be payable on the amount owing on that date and on each date which is 30 days after the that date, provided that charge shall not be payable at a rate greater than 50% of the outstanding amount.
5.4 If legal action is required to collect outstanding invoices, all reasonable legal costs incurred by the Seller in attempting to recover the debt shall be added to any outstanding amount and shall become part of the total collectible debt
- DELIVERY
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place
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 however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date on giving reasonable notice to the Buyer
6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Terms or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated
6.4 The Seller may cancel an order if it anticipates it may not be able to deliver the Goods (if it has agreed to do so) on time or at all. If the Seller fails to deliver the Goods (or any instalment) in such circumstances, the Seller shall incur no liability.
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 Buyer’s reasonable control or by reason of the Seller’s fault) then, without limiting any other right or remedy available to the Seller, the Seller may:-
(1) store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
(2) sell the Goods at the best price readily obtainable and (if applicable, after deducting all reasonable storage and selling expenses) charge the Buyer for any shortfall below the price under the Contract
6.6 A claim by the Buyer that any delivery of Goods is not complete or that there is damage to the external packaging must be made by notice to the Seller within two working days failing which the Buyer shall be deemed to have received the Goods in the correct quantity and specification. If the Buyer does not notify the Seller accordingly the Seller shall have no liability for any shortage or damage and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
- RISK AND PROPERTY
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:-
(1) in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
(2) in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full for all monies due to the Buyer from the Seller in respect of Goods (whether such Goods are the subject of one or more Contracts) and all other goods sold or agreed to be sold by the Seller to the Buyer for which payment is then due
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall ensure that any identification numbers or labels identifying them as the Seller’s property will not be obscured or removed and that the Goods will be separately and properly stored and identified as the Goods of the Seller and will be protected and insured, but the Buyer may resell or use the Goods in the ordinary course of its business
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller may at any time require the Buyer to deliver up the Goods to the Seller or enter on any premises of the Buyer or any third party where the Goods are stored and repossess the Goods
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without limiting any other right or remedy of the Seller) forthwith become due and payable
- WARRANTIES AND LIABILITY
8.1 Subject to the following provisions, the Seller warrants that the Goods will correspond with their specification at the time of delivery
8.2 The above warranty is given by the Seller subject to the following conditions:-
(1) the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
(2) the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to store properly or failure to follow the Seller’s instructions (whether oral or in writing and whether given before or after the date of a Contract), misuse or alteration or repair of the Goods;
(3) the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
(4) the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller;
(5) that the Goods are used in equipment and in a manner which complies with all relevant statutory or regulatory requirements from time to time in force
8.3 Subject as expressly provided in these Terms, and except where the Goods are sold to a Buyer dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law
8.4 Where the Goods are sold to a Buyer under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Buyer are not affected by these Terms
8.5 A claim by the Buyer which is based on any defect in the quality or condition 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 two working days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure and the Goods must be returned to the Buyer undamaged immediately. 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
8.6 To be valid, any claim in respect of the Goods must be made within 12 months of the date of a Contract. Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Terms, the Seller may replace the Goods (or the part in question) or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), in which case the Seller shall have no further liability to the Buyer
8.7 Except in respect of death or personal injury caused by the Seller’s negligence, or liability for defective products under the Consumer Protection Act 1987, the Seller shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accordance with the Contract or at all) or their use or resale by the Buyer, and the entire liability of the Seller under or in connection with the Contract shall not exceed the price of the Goods, except as expressly provided in these Terms
8.8 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:-
(1) act of God, explosion, flood, tempest, fire or accident;
(2) war or threat of war, sabotage, insurrection, terrorism, civil disturbance or requisition;
(3) acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
(4) import or export regulations or embargoes;
(5) strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
(6) difficulties in obtaining raw materials, labour, fuel, parts or machinery;
(7) power failure or breakdown in machinery
8.9 The parties agree that the limitations on the liability of the Seller in these Terms are reasonable since the price of the Goods is agreed by the Seller on the basis that it is able to so limit its liability. If the Buyer gives notice that it wishes to limit or exclude such exclusions of liability then Seller may be willing (but is not obliged) to do so against payment of a sum sufficient to pay any additional insurance premium payable by the Seller in such circumstances
- INSOLVENCY OF BUYER
9.1 This clause 9 applies if:-
(1) the Buyer makes a voluntary arrangement with its creditors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
(2) an encumbrancer takes possession, or a receiver or administrative receiver is appointed, of any of the property or assets of the Buyer; or
(3) the Buyer ceases, or threatens to cease, to carry on business; or
(4) the Buyer proposes to become the subject of a voluntary arrangement or proposes or makes any composition with all or any of its creditors; or
(5) the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly
9.2 If this clause applies then, without limiting any other right or remedy available to the Seller, the Seller may cancel any Contract or suspend any further deliveries under any 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. In the event immediate payment is not made, the seller may enter the buyer’s premises and remove the Goods.
- EXPORT TERMS
10.1 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 10 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Terms.
10.2 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
10.3 Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered ex works and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979
10.4 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit
- DIVISIBILITY
11.1 The contract is divisible. Each delivery made hereunder:
(i) shall be deemed to arise from a separate contract, and
(ii) shall be invoiced separately and any invoice for a delivery shall be payable in full in accordance with the terms of payment provided for herein without reference to and not withstanding any defect or default in the delivery of any other instalments.
- GENERAL
12.1 A notice required or permitted to be given by either party to the other under these Terms shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice
12.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision
12.3 If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected
12.4 The Contract shall be governed by English law and the Buyer agrees to submit to the exclusive jurisdiction of the courts in England 19 December 2008
12.5 In the event of Brexit, if the seller considers that the consequences of Brexit materially increase the costs of it performing its obligations under this Contract and/or reduces its income under this Contract and/or otherwise adversely affects the benefit it derives from this Contract, such the seller may give notice to the buyer of the same, and shall promptly supply such details and evidence of such consequences as may reasonably be required by the buyer). Within fourteen (14) days of the buyer receiving such notice, the Parties shall discuss in good faith and agree whether any amendments are required to the Contract as a result of Brexit, such that the provisions of the Contract maintain the same overall balance of obligations, benefits, liabilities and risk between the Parties as applied at the date of the Contract. The Parties agree that the imposition of tariffs and other trade barriers relating to the subject matter of the Contract and not in existence at the date of the Contract shall be considered a change in the overall balance.” In the event agreement cannot be reached between the buyer and the seller, the seller reserves the right to cancel the contract and recover cost incurred form un-invoiced from the buyer.