CONDITIONS OF SALE
P B ASHER DIESEL INJECTION ENGINEERS LIMITED
1.1 In these Conditions the following words have the following meanings:-
“Buyer” the person who purchases the Goods from the Seller;
“Consumer” shall have the meaning attributed to it in the Unfair Contract Terms Act 1977;
“Contract” the contract for between the Seller and the Buyer for sale and purchase of the Goods incorporating these Conditions;
“Goods” the goods agreed in the Contract to be sold to the Buyer and includes all items ancillary thereto (including any instalment of such Goods or any parts for them);
“Seller” PB ASHER DIESEL INJECTION ENGINEERS LIMITED whose principal place of business is at West Quay Road, Southampton, SO15 1AE; and
“Writing” includes facsimile transmission and comparable means of communication.
1.2 Any reference in these Conditions to any 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 of these Conditions are for convenience only and shall not affect the interpretation.
2 BASIS OF THE SALE AND ORDERS
2.1 The Contract shall be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply). No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
2.2 Any quotation is issued by the Seller on the basis that no Contract will come into existence until the Seller despatches a written acceptance of order to the Buyer but the terms contained in any quotation (including prices) will normally remain fixed if a Contract is made within 30 days of the date of the quotation provided that the Seller has not previously withdrawn it.
2.3 The Seller will be under no liability for any order received from the Buyer until the Seller accepts such order in writing or (if earlier) the Seller delivers the Goods to the Buyer at which time a Contract will be formed between the Seller and the Buyer.
2.4 The Contract may only be cancelled by the Buyer with in the Seller’s agreement in Writing and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation save that nothing in this Condition shall be construed as excluding or limiting any statutory rights to return Goods or to cancel the Contract where the Buyer deals as a Consumer.
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 the 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.
2.6 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 upon 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.
2.7 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.
3.1 The Buyer shall be responsible for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by it, 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.
3.2 The quantity, quality and description of any specification for the Goods shall be those set out in the Seller’s acceptance of order or other order confirmation .
3.3 Notwithstanding that a sample of the Goods may have been exhibited to and inspected by the Buyer it is hereby agreed and acknowledged by the Buyer that such sample was so exhibited and inspected solely to enable the Buyer to judge for itself/himself the quality of the bulk and not so as to constitute as sale by sample.
3.4 The Seller reserves the right to make any changes to the specification of the Goods which are required to conform with any applicable statutory or EU requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.5 If the Goods 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 of infringement of any intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
4 PRICE AND PAYMENT
4.1 The price of the Goods shall be the Seller’s quoted price or, where no price was quoted, or where the quoted price is no longer valid, the price listed in the Seller’s published list current at the date of the Seller’s acceptance of order. Where the Goods are supplied for export outside of the United Kingdom the Seller’s published export price list shall apply.
4.2 Prices for the Goods do not include:-
4.2.1 sales taxes or valued added tax;
4.2.2 insurance; and
4.2.3 the cost of loading, unloading, carriage and installation;
all of which amounts the Buyer will pay in addition when it is due to pay for the Goods.
4.3 The Seller reserves the right, to invoice the Buyer for Goods delivered in instalments after such instalment has been delivered, and the provisions of these Conditions shall apply in full to such invoices as if such instalment was a separate Contract.
4.4 The Seller reserves the right, by giving notice to the Buyer at any time before delivery of the Goods, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond its control (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 are requested by the Buyer and accepted by the Seller, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.5 Payment shall be made Pounds Sterling in advance or within thirty days of the date of the Seller’s invoice as agreed between the parties. The Buyer shall make no deduction of any type from such payments unless it has a valid court order requiring an amount equal to such deduction to be paid by the Seller to the Buyer.
4.6 Time for payment shall be of the essence and failure by the Buyer to pay in accordance with the provisions of this Condition shall entitle the Seller, without prejudice to its rights to damages, to suspend any outstanding deliveries or to cancel the Contract.
4.7 In addition to the Seller’s rights under Condition 4.6, the Buyer shall be liable to pay interest (compounded monthly) on any amounts outstanding (both before and after judgment) at the rate of 3 per cent above the base rate of the Bank of England for the time being in force, accruing on a daily basis until payment is made. As an alternative, the Seller reserves the right to charge interest in accordance with the Late Payment of Commercial Debts (Interest) Act 1998.
5.1 Unless otherwise agreed in Writing, delivery of the Goods shall take place at the Buyer’s place of business and may be made by the Seller by any method of transport it may select.
5.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any loss (including loss of profit), costs, damages, charges or expenses caused directly or indirectly by any delay in delivery of the Goods howsoever caused nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 90 days. Time for delivery shall not be of the essence unless previously agreed by the Seller in Writing. Any liability of the Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Goods.
5.3 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 the Contract or these Conditions or any claim by the Buyer in respect of any one or more of the instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
5.4 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions when the Goods are ready for delivery then:-
5.4.1 the risk in the Goods will pass to the Buyer (including for loss or damage caused by the Seller’s negligence);
5.4.2 the Goods will be deemed to have been delivered;
5.4.3 the Seller may store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage.
6 RISK AND OWNERSHIP
6.1 Risk of damage to or loss of the Goods shall pass to the Buyer:-
6.1.1 in the case of the 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
6.1.2 in the case of Goods to be delivered other than at the Seller’s premises at the time of delivery or, if the Buyer fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
6.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, ownership of the Goods shall not pass to the Buyer until the Seller has received (in cash or cleared funds), payment in full of all sums due to it in respect of:-
6.2.1 the Goods; and
6.2.2 all other sums which are or which become due to the Seller on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:-
6.3.1 hold the Goods as the Seller’s fiduciary agent and bailee;
6.3.2 store the Goods (at no cost to the Seller) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Seller’s property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.5 hold the proceeds of the insurance referred to in Condition 6.3.4 on trust for the Seller and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.
6.4 The Buyer may resell the Goods before ownership has passed to it provided that any sale shall be effected in the ordinary course of the Buyer’s business at full market value and the Buyer shall hold such part of the proceeds of sale as represent the amount owed by the Buyer to the Seller on behalf of the Seller and the Buyer shall account to the Seller accordingly.
6.5 The Buyer’s right to possession of the Goods shall terminate immediately if:-
6.5.1 being an individual the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any Act for the time being in force for the relief of insolvent debtors;
6.5.2 being a body corporate:-
184.108.40.206 a creditor or encumbrancer attaches or takes possession of, or a distress, execution, sequestration or other process is levied or enforced upon or sued out against, the whole or any part of the assets of the Buyer and such attachment or process is not discharged within seven days;
220.127.116.11 the Buyer suspends or threatens to suspend payment of its debts or is, or is deemed for the purposes of any applicable law to be, unable to pay its debts as they fall due or admits inability to pay its debts as they fall due or commences negotiations with all or any class of its creditors with a view to the general readjustment or rescheduling of all or any class of its indebtedness or proposes or enters into any assignment, composition or other arrangement for the benefit of its creditors generally or any class of creditors;
18.104.22.168 a meeting of the Buyer is convened for the purpose of considering any resolution for (or to petition for) its winding up or its administration or any such resolution is passed, or any person presents a petition for the winding-up or for the administration of the Buyer or any order for the winding-up or administration of the Buyer is made or a Notice of Intention to Appoint an Administrator is filed at court or any other step (including petition, proposal or convening a meeting) is taken with a view to rehabilitation, administration, liquidation, winging-up or dissolution of the Buyer or any other insolvency or moratorium proceedings involving the Buyer;
6.5.3 the Buyer ceases or threatens to cease to trade;
6.5.4 the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe/perform any of his/its obligations under the Contract or any other contract between the Seller and the Buyer, or is unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
6.5.5 the Buyer encumbers or in any way charges any of the Goods; or
6.5.6 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.
6.6 In any of the circumstances specified in Condition 6.5 apply, 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.
6.7 The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.
6.7 The Buyer grants the Seller, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
7 WARRANTIES AND LIABILITY
7.1 Subject to the following provisions of this Condition 7 the Seller warrants that the Goods will correspond with the specification at the time of delivery providing written notification of any defect is given within 3 days of 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. Time shall be of the essence in respect of notification of all claims. If 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. In no event shall the Buyer be entitled to reject the Goods on the basis of any defect or failure which is so slight that it would be unreasonable for it/him to reject them.
7.2 The Seller reserves the right to require that all faulty Goods be returned to the Seller. In that event that the Goods are agreed to be faulty the Seller shall refund the cost of carriage by normal means on returned Goods and the repaired or replacement Goods will be delivered free of charge by the Seller to the location of the faulty Goods. Any Goods returned by the Buyer to the Seller must be accompanied by a form setting out the number of Goods returned and a summary of the faults discovered within a reasonable period of delivery. The Goods must be returned in their original packing or in a cardboard box surrounded by plenty of foam and the Buyer must at the time give the full name, address and telephone number of the person or agent with whom the Seller may contact in relation to such Goods.
7.3 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition 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 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), but the Seller shall have no further liability to the Buyer. The Seller shall not be under any liability to replace the Goods or refund the price of the Goods where the Buyer returns them to the Seller in an unsatisfactory condition and not in accordance with the terms set out above.
7.4 The Seller shall not be liable for a breach of any of the warranty in this Condition 7 if:-
7.4.1 the Buyer makes any further use of such Goods after giving notice of such defects;
7.4.2 the defect in the Goods arises from any drawing, design or specification supplied by the Buyer;
7.4.3 the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, installation, commissioning, use of the Goods, or, if there are none, good trade practices; or
7.4.4 the defect arises from fair wear and tear, wilful damage, wrongful or unlawful tampering with the Goods by a third party, negligence, abnormal working conditions, misuse or alteration or repair of the Goods without the Seller’s approval or otherwise than by the Seller’s authorised representative.
8 LIMITATION OF LIABILITY
8.1 Subject as expressly provided in these Conditions, and except where the Goods are sold to a Buyer who deals as a Consumer, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.2 Subject to Condition 7 and where permitted by law when the Buyer deals as a Consumer, the following provisions set out the entire financial liability of the Seller (including any liability of the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of any breach of these Conditions and any representation, statement or tortious act or omission, including negligence arising under or in connection with the Contract.
8.3 All warranties, conditions and other terms implied by statute or common law (save for conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
8.5.1 the Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract shall be limited to the Contract price; and
8.5.2 the Seller shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever which arise out of or in connection with the Contract.
9 FORCE MAJEURE
9.1 The Seller shall be under no liability for any delay or failure to perform its obligations under the Contract in the event that the manufacture, supply or delivery of the Goods is prevented or delayed by any act or circumstances beyond the Seller’s reasonable control including but not limited to Act of God, legislation, terrorism, war, fire, drought, failure of power supply, lock-out, strike or other action taken by employees in contemplation or furtherance of a trade dispute or owing to any inability to procure materials required for their performance of the Contract.
9.2 The Seller shall notify the Buyer of any circumstance arising under Condition 9.1 and if such circumstance prevails for more than 3 months then either party shall have the option by giving notice in writing to the other to bring the Contract to an end.
10 EXPORT TERMS
10.1 In these conditions “Incoterms” means the international rules for the interpretation of trade terms of the international Chamber of Commerce as in force at the date of the Contract. Unless the context otherwise requires, any term of expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
10.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this Condition 10 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Conditions.
10.3 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 thereon.
10.4 Unless otherwise agreed in Writing between the Buyer and the Seller, the Goods shall be delivered ex works with the Buyer being responsible for the costs of packaging, insurance and freight. In the event that the Seller provides the Buyer with reusable flight cases for the equipment then the Buyer shall return these to the Seller at the Buyer’s own cost.
10.5 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.
10.6 Payment of all amounts due to the Seller shall be as specified in the Seller’s quotation or confirmation of order. In the event that no such terms are set out then the payment terms shall be as set out in these Conditions.
11.1 Any information which the Seller discloses relating to the Goods, which is not in the public domain at the time of disclosure, shall be confidential and shall not be disclosed to any third party or used by the Buyer to enable the Buyer to manufacture the Goods or use the same as a springboard to develop the Buyer’s own products.
11.2 Any notice required to be given by either party to the other shall be in Writing and shall be addressed to that other party at its registered office or principal place of business or such other address as may have been notified by one party to the other. All such notices shall be deemed to be served:-
11.2.1 in the case of an inland letter 24 hours after proven despatch or posting;
11.2.2 in the case of any airmail letter 72 hours after proven despatch or posting; and
11.2.3 in the case of a fax 9 a.m. on the business day of the recipient party following its despatch and receipt by the transmitting party of machine confirmation of successful transmission to the recipient party’s receiver number.
11.3 No waiver by the Seller of any breach of the Contract or these Conditions by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
11.4 If any provision of these Conditions 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 remainder of the provision in question shall not be affected thereby.
11.5 No Contract is assignable by the Buyer without the written consent of the Seller and each Contract is between the Seller and the Buyer as principals but the Seller may without consent assign or sub-contract all or any of its rights and obligations under a Contract.
11.6 The parties to the Contract do not intend that any provisions of the Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
11.7 The Contract and these Conditions shall be governed by the laws of England.