Shawston International Limited Conditions of Sale
1. DEFINITIONS
In these Conditions the following words shall have the following meanings:-
“Applicable Laws” means all applicable laws, statutes, regulations and codes from time to time in force.
“Business Day” means a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
"Buyer" the business, firm, company, body or other entity to whom the Seller agrees to sell Goods in accordance with these Conditions;
"Goods" the parts goods materials or equipment specified or referred to in the Order;
"Order" the purchase order placed with the Seller by the Buyer;
"Contract" any contract concluded between the Buyer and Seller subject to and in accordance with these Conditions;
"Delivery" the delivery of the Goods by the Seller in accordance with these Conditions;
"Specification" the technical or other description (whether as to quantity, quality, price, weight or otherwise) of the Goods, shown or referred to in the Contract and any performance schedules and/or other characteristics and details.
"Seller" means Shawston International Limited;
2. BASIS OF SALE
2.1 All contracts shall be concluded upon the basis of these conditions together with any special conditions issued by the Seller to the Buyer at any time prior to or with the Seller's acceptance of Order. Variations and/or qualifications of such conditions can only be effected by a document signed by a duly authorised officer of the Seller and setting out in full the relevant variations and qualifications.
2.2 No terms or conditions submitted by the Buyer to the Seller, irrespective of their date, shall prevail over these Conditions and the Buyer waives any right it may otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Buyer that is inconsistent with these Conditions.
2.3 All Orders shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions and acceptance of Delivery shall be deemed conclusive evidence of the Buyer's acceptance of these Conditions.
2.4 The Order shall only be deemed accepted when the Seller issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.5 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 a contract the Buyer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed.
3. QUOTATIONS
3.1 Quotations are not offers and may be withdrawn or varied at any time prior to the acceptance by the Seller of the Buyer's Order but unless previously withdrawn or varied by the Seller quotations shall remain open to acceptance for 14 days (or such longer or shorter period as may have been stated, in writing, by the Seller) from the date of posting. The Seller may nevertheless elect at its option to treat as binding an acceptance received after the expiration of such period, and shall be deemed to have so elected unless and until it notifies the Buyer to the contrary.
3.2 Orders for the Goods shall be given by the Buyer to the Seller in writing (using such methods including email or as may be agreed in writing by the Seller). Any verbal Orders shall be confirmed by the Buyer in writing no more than 3 days after the Order is given by the Buyer but for the avoidance of doubt, it is agreed that verbal Orders shall upon their acceptance by the Seller be binding notwithstanding any failure of the Buyer to confirm the same in writing.
4. ORDERS AND SPECIFICATIONS
4.1 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including but not exclusively any relevant Specification) and for providing to the Seller any necessary information concerning the Goods without undue delay and in any event prior to dispatch for delivery of the Goods to enable the Seller to perform the Contract in accordance with its terms.
4.2 If the Goods are to be manufactured or processed by the Seller in accordance with a Specification and/or design submitted by the Buyer the Buyer shall indemnify the Seller from and against all costs, claims, damages and expenses made against or incurred by the Seller in connection with the settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any third party arising out of the Seller's use of such Specification.
4.3 The Seller expressly reserves the right (but accepts no obligation) to make such changes in the Specification of the Goods as are necessary to ensure that the Goods conform with any applicable statutory requirements and the Buyer shall not be entitled to object to or reject the Goods by reason of any such changes.
4.4 All descriptions, specifications, drawings and particulars of weight and dimensions submitted by the Seller including but not limited to a quotation (collectively referred to as "the Quotation Particulars') or as part of any response by the Seller to the Buyer’s requests for sustainability data relating to the Seller’s business or products are approximate only and such material as is contained in the Seller's catalogues and other advertising matter or other documentation or data is intended merely to illustrate the Goods described therein and will not form part of the Contract. The Seller reserves the right to make such reasonable changes as it considers to be necessary in the Quotation Particulars or other documents or data requested by the Buyer either before or during the course of the Contract provided that the Seller shall not thereby render the Goods unsuitable for the purpose for which they are intended.
5. PRICES
5.1 The price of the Goods shall be those set out in the Seller’s price list at the time of dispatch and the Seller reserves the right to revise quoted prices before dispatch for delivery of the Goods in the event of any change in the Seller’s costs and expenses. Unless otherwise stated, prices quoted are for manufacture and delivery in one consignment and shall exclude amounts in respect of value added tax (VAT) which the Buyer shall additionally be liable to pay to the Seller at the prevailing rate.
5.2 The cost of any variation or modification of the Contract required by the Buyer shall, if accepted by the Seller, be borne by the Buyer.
6. TERMS OF PAYMENT
6.1 Payment for the Goods shall be made no later than 30 days after the the end of the month of invoicing unless otherwise expressly agreed in writing by the Seller. Payment shall be made in full and in cleared funds to a bank account nominated in writing by the Seller.
6.2 Time of payment shall be of essence to the Contract. The Seller reserves the right to suspend, reduce and/or cancel trading arrangements offered to the Buyer, without prejudice to any other rights the Seller may have against the Buyer, in the event the Buyer defaults in such payment obligations to the Seller.
6.3 The Seller reserves its Statutory Right to apply interest and late payment compensation in accordance with the Late Payment of Commercial Debts Regulations 2002. Thereafter any Costs incurred by the Seller in recovering the amount of the invoice, whether by legal proceedings or otherwise shall be recoverable as part of the debt.
6.4 In the case of orders involving more than one delivery, if default is made in payment on the due date, the Seller at its option shall be entitled to treat the Contract as repudiated by the Buyer.
6.5 Each Contract shall be subject to the Seller being satisfied as to the Buyers credit status, both prior to and during the period of the Contract. If the Seller becomes dissatisfied with the Buyer's credit status it may suspend performance of the Contract and any agreed rebate scheme until it is satisfied as to the Buyer's creditworthiness or is given such security for the price as the Seller shall deem appropriate.
6.6 All and any sums due from the Buyer to the Seller shall become immediately due and payable, regardless of any prior arrangement for payment, in the event the Seller is unable to obtain insurance in relation to such debt, or upon the Buyer's credit status not being at a level satisfactory to the Seller, or upon any other circumstance arising which may, in the Seller's sole opinion, prejudice the Seller's ability to collect payment of the debt in full.
6.7 If the recovery of any sums outstanding from the Buyer to the Seller is passed to a debt collection agency or legal advisor, the Buyer shall pay the Seller's costs incurred, on an indemnity basis, in instructing such debt collection agency or legal advisor and all legal and other costs ancillary thereto.
7. DELIVERY AND RISK
7.1 Delivery of the Goods shall be completed to the Buyer at the place 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 agreed, Delivery shall take place at the Seller's address. If Goods are collected from the Seller's premises Delivery shall take place immediately on loading of the Goods onto the transport vehicle. Notwithstanding such Delivery, the property in and title to the Goods shall not pass to the Buyer except as provided in Clause 10 hereof.
7.2 The Seller shall endeavour to deliver the Goods by or within any date or period stipulated or referred to in its acceptance of Order. Any such date or period shall be approximate only however and the Seller will not be liable for whatever reason for any damage, loss, cost or expense whatsoever arising from any departure from the said date or period howsoever caused, including but not limited to any delay caused by those events listed in clause 14.7. 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.
7.3 If Delivery of the Goods is prevented or delayed by reason of those events listed in clause 14.7 or any other cause beyond the Seller's control then the time for Delivery shall be extended for such period as is reasonable and the Seller shall not be in breach of any of its obligations under the Contract.
7.4The Seller may effect Delivery by instalments in which case these Conditions shall apply to each instalment as though a separate Contract and any failure or defect in any one Delivery will not entitle the Buyer to repudiate the Contract as a whole.
7.5 If the Seller fails to deliver the Goods for any reason (other than any cause beyond the Seller's reasonable control or the Buyer's fault) and the Seller is accordingly liable to the Buyer, the Seller's liability shall be strictly limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods. No claims for other and/or consequential loss or damage shall be allowed in connection with any such non-Delivery.
7.6 Claims relating to the delay of and/or non-delivery of the Goods must be submitted in writing to the Seller within seven days after the proposed date of dispatch of the Goods notified to the Buyer. The Seller shall not be under any liability whatsoever in respect of any claim if it shall not be so notified.
7.7 If the Buyer fails to take Delivery of the Goods within two Business Days of the Seller notifying the Buyer that the Goods are ready, then, except where such failure is beyond the Buyer's reasonable control or by reason of the Seller's fault) then Delivery of the Goods shall be deemed to have been completed at 9:00am on the second Business Day after the day on which the Seller notified the Buyer that the Goods were ready.
7.8 In the event of clause 7.7, and without prejudice to any other right or remedy available to the Seller, the Seller may:
(a) store the Goods, until actual Delivery or sale (as provided in paragraph (b) hereof) and charge the Buyer for the reasonable costs (including insurance) of storage; and/or
(b) if the Buyer fails to take Delivery within ten Business Days after the Seller notified the Buyer that the Goods were ready for delivery, sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) charge the Buyer for any shortfall below the price.
8. MANUFACTURE
While every endeavour will be made to supply materials in accordance with the quality of samples submitted or quoted for, alternative materials may be submitted for those quoted, subject to the Buyer's prior approval.
9. SKETCHES, PROOFS AND PRINTING
9.1 All sketches and original work together with the copyright therein remain the property of the Seller.
9.2 No responsibility will be accepted by the Seller for any errors arising from proofs which have been approved by the Buyer.
9.3 The Buyer shall be solely responsible for any matter which it instructs the Seller to print on the Goods and shall indemnify the Seller for the same, including but not limited to any liability for third party claims.
10. TITLE AND RISK THE BUYER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
10.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
(a) in the case of Goods to be delivered otherwise than at the Seller's premises, at the time of Delivery;
(b) 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.
10.2 For the avoidance of any doubt if the Buyer wishes to collect the Goods from the Seller's premises outside the Seller's normal business hours the Buyer acknowledges and agrees that the Goods will be left unattended outside the Seller's premises and that risk of damage to and/or loss of the Goods in such circumstances is wholly the Buyer's responsibility and the Seller shall have no responsibility therefore whatsoever.
10.3 Legal ownership in and the right to dispose of the Goods shall not pass to the Buyer until the Seller has received in full all amounts payable to it by the Buyer whether under the Contract or otherwise and whether or not any such amount shall have become due hereunder and until this time the whole right title and interest both legal and equitable in and to the Goods shall remain with the Seller and the Buyer shall keep the Goods as the Seller's fiduciary agent and bailee and shall keep the Goods properly stored, protected and insured in such a way that they are identifiable as the property of the Seller and are separate from all other goods of the Buyer.
10.4 Subject to the provisions of this clause 10 the Buyer shall be entitled to the use of the Goods prior to the transfer of legal ownership but shall do so as principal and not as the Seller’s agent. The Buyer shall in no circumstances be entitled to sell the Goods unless:-
(a) it has the prior written consent of the Seller; and
10.5 where the Seller has given such written consent subject to conditions the Buyer complies with any and all such conditions. Until legal ownership in the Goods is transferred as provided by this Clause 10 the Seller shall be entitled to enter the premises of the Buyer for the purpose of examining the Goods and checking compliance by the Buyer with the terms of this Clause 10 and on the occurrence of any breach by the Buyer the Seller shall, in addition to any other rights the Seller may have, be entitled to demand the Buyer deliver up the Goods to the Seller, sever the Goods from any other property of the Buyer or a third party, repossess and/or resell the Goods or any part thereof.
10.6 The Seller's rights contained in this Clause 10 and the exercise thereof shall be without prejudice to all other rights of the Seller and the Seller shall be entitled to maintain an action for the price of the Goods notwithstanding that the legal ownership in the Goods may not have passed to the Buyer.
11. QUALITY AND INSPECTION
11.1 The Buyer shall immediately upon Delivery of the Goods examine them to determine their quality and quantity, and shall within 24 hours of Delivery give verbal notification and within 3 days of Delivery give notice in writing to the Seller of any claim arising from shortage of and/or damage to the materials.
11.2 The Seller's liability hereunder in respect of any shortage, loss or damage shall be limited, at the option of the Seller, to: repair or replacement free of charge or 00 refund/credit of the proportion of the price attributable to the materials undelivered, lost or damaged.
11.3 Claims relating to any defect in the Goods which is not immediately visible on inspection must be made in writing immediately upon the Buyer learning of the defect and no later than 30 days after the Buyer's receipt of the Goods.
11.4 Any claim not made in accordance with the above clauses shall, to the full extent permitted by law, be deemed waived and the Seller shall not be liable to the Buyer for any resulting damage or loss.
11.5 The Seller shall have no liability at any time:
(a) in respect of any defect in the Goods, arising from any drawing, design or specification supplied by the Buyer;
(b) in respect of any defect appearing in the Goods, or any component part of the Goods which is due, or partly due, to the material of which the same is made, its design or any method of manufacture or process of treatment applied thereto by any person other than the Seller, or as specifically requested by the Buyer; or
(c) in respect of any defect in the Goods arising from fair wear and tear, abnormal working conditions, misuse, maltreatment or alteration, failure to follow the Seller’s instructions in respect of the use of the Goods or repair of the Goods without the Seller's approval; or
(d) in respect of any alleged defect in the Goods following discovery of which the Buyer continues to use the Goods.
12. RIGHTS OF SET OFF
All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
13. RETURNS
If the Buyer has purchased such quantity of Goods in excess of its requirements and wishes to return excess Goods, the Seller shall be entitled (but not obligated) to buy back such excess Goods at its sole discretion, subject to any deductions to reflect the diminution in value of the Goods since Delivery and any use or damage to the Goods. All other terms related to the purchase of any excess Goods will be subject to the Seller’s then standard terms.
14. EXCLUSION OF LIABILITY FOR CONSEQUENTIAL LOSS : THE BUYER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
14.1 The Seller shall have no liability to the Buyer for any loss, cost, expense, liability or other claim for compensation arising from any documents or other materials or other information provided by the Buyer relating to the Goods or any instructions (whether written or oral) supplied by the Buyer which are incomplete, incorrect, inaccurate, illegible, out of sequence or in the wrong form or arising from their late arrival or non-arrival or any other fault (whether by act or omission or otherwise) whatsoever that is attributable to the Buyer.
14.2 Furthermore the Seller shall have no liability to the Buyer for any loss, expense or claim whatsoever or however caused whether arising under contract, tort (including negligence) or otherwise including without limitation for the following types of loss:
(a) loss of sales or business
(b) loss of or corruption to data, software or information;
(c) loss of profits;
(d) loss of agreement or contracts; ,
(e) loss of or damage to goodwill;
(f) loss of anticipated savings; and
(g) indirect or consequential loss.
14.3 The Seller accepts liability to the extent that it results from its own negligence or the negligence of its employees for death or personal injury without limit.
14.4 The Seller’s liability in respect of physical damage to or loss of the Buyer's tangible property shall be an amount of £1,000 in respect of each incident or series of connected incidents.
14. 5 Subject to clause 14.3 and 14.4, the Seller’s total liability to the Buyer shall not exceed 75% of the price of the Goods supplied by the Seller, and payable by the Buyer, under this Contract.
14. 6 The Buyer agrees that except as expressly provided in this Clause 14 the Seller will not be under any liability of any kind whatever or however caused arising directly or indirectly in connection with the Contract.
14.7 Neither party shall be liable to the other or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform any of its obligations in relation to the Goods if the delay or failure was beyond that party's reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond either party's reasonable control:-
(a) act of god, explosion, flood, tempest, fire of accident;
(b) war or threat of war, sabotage, insurrection, civil disturbance or requisition;
(c) acts, restrictions, regulations, bye-laws, prohibitions or measure of any kind on the part of any governmental, parliamentary or local authority;
(d) import or export regulations or embargoes;
(e) strikes, lock-outs, or other industrial actions or trade disputes (whether involving employees of either party or of a third party);
(f) difficulties in obtaining raw materials, labour, fuel, parts or machinery; and/or
(g) power failure or breakdown in machinery.
15. EXCLUSION OF LIABILITY FOR QUALITY OF GOODS
15.1 All warranties, representations, terms, conditions and duties implied by law relating to fitness, quality and/or adequacy are excluded to the fullest extent permitted by law.
15.2The Seller does not warrant or represent that the Goods to be sold will have been manufactured or processed by the Seller. The Seller may act as principal or as undisclosed agent for any other person or company in the making or performance of the Contract for the sale of the Goods.
15.3The Seller does not warrant that the Goods will be fit for any particular purpose intended by the Buyer but only for the purpose held out by the Seller
16. INSOLVENCY OF BUYER
16.1 This Clause shall apply if:
(a) any distress or execution shall be levied on the Buyer's assets or if the Buyer shall make or offer to make any arrangement or composition with creditors or an administration order shall be presented or made against the Buyer or if the Buyer is a limited company and any resolution or petition to wind up the same (other than for the purposes of solvent reconstruction or amalgamation) shall be passed or served or an administration order be made or if a receiver or administrator be appointed of the Buyer's assets and undertaking or any part thereof or any other event pursuant to the Insolvency Act 1986 arises; or
(b) the Buyer ceases or threatens to cease to carry on business; or
(c) the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer or if in the opinion of the Seller serious doubts arise as to the solvency of the Buyer.
16.2 If any of the events in clause 16.1 apply, then without prejudice to any other right or remedy available to the Seller.-
(a) the Seller shall be entitled to terminate the Contract or suspend any further deliveries under the Contract without any liability to the Buyer; and
(b) any entitlement of the Buyer hereunder to use Goods delivered but not paid for in full shall terminate forthwith; and
(c) the Buyer shall allow the Seller to enter any premises of the Buyer to ascertain the Goods from the Buyer’s property to repossess and to resell any Goods delivered but not paid for in full or any part thereof; and
(d) if Goods have been delivered but not paid in full, the price therefore shall become immediately due and payable notwithstanding any agreement to the contrary reached between the Buyer and the Seller prior to any event referred to in Clause 16.1.
16.3 Without prejudice to any of the Seller's rights to claim damages the Buyer will, if the Buyer cancels, extends or delays or purports to cancel, extend or delay the Contract or fails to take delivery of any Goods, indemnify the Seller against all loss cost damage or expense incurred by the Seller in connection with the non-performance of the Contract.
17. PRODUCT LIABILITY
In the event the Buyer shall vend the Goods provided by the Seller, to a third party, the Buyer shall ensure that any Third Party(s) are warned of the nature of the products. Further the Buyer shall provide any requisite information to the third party such that the Goods are transported, stored, fitted and used in accordance with any specification and/or instruction the Seller may provide. The Buyer shall indemnify the Seller from and against all costs, claims, damages and expenses made against or incurred by the Seller resulting from inappropriate/misuse of the Goods.
18. CONFIDENTIALITY
18.1 Each party undertakes that it shall not at any time during the Contract and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party, except as permitted by clause 18.2.
18.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this Error! Bookmark not defined.2; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
18.3 Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
19. THIRD PARTY CONTRACTS
This Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract. The Buyer shall in no way pledge the credit of the seller, nor make any representation, nor give any warranty with regard to the Seller's products other than that contained in these Terms and conditions, nor shall the Buyer sell the goods in the name of the Seller, nor describe or infer that the Buyer is the agent of the Seller. For the avoidance of doubt, the Seller will not be held liable in any way whatsoever for any loss incurred by the Buyer under any Contract between the Buyer and any third party due to any default or breach whatsoever (especially delayed delivery for any reason whatsoever) by the Seller of this Contract.
20. SUB - CONTRACTING
The Seller reserves the right to assign, transfer, charge, mortgage or sub-contract any part of the Contract. The Buyer may not assign, transfer, subcontract, mortgage or declare a trust in respect of or otherwise dispose of any of its rights under the Contract without the prior consent in writing signed by a duly authorised representative of the Seller.
21. COMPLIANCE WITH APPLICABLE LAWS
It shall be the responsibility of the Buyer to obtain all necessary permissions and licences to comply with the Applicable Laws in respect of the Goods under the Contract.
22. WHOLE AGREEMENT
Each party acknowledges that the Contract constitutes the whole agreement between the parties and it has not relied upon any oral or written statement, assurance, representation or warranty made to it by the other or its employees or agents.
23. SEVERANCE
If any provision or part-provision of the Contract is or becomes invalid, illegal, unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract.
24. NOTICES
Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing and addressed to the Seller at its registered office and to the Buyer at the address given on its order or to such other address as may at the relevant time have been notified to the party giving notice pursuant to this provision
25. VARIATION
No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
26. WAIVER
No waiver by the Seller of any breach of the Contract or there Conditions by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision
27. LAW
These conditions and each and every Contract shall be governed by English Law and subject to the jurisdiction of the English courts