Standard Terms and Conditions
The Buyer’s attention is drawn in particular to the provisions of clauses 10 and 11 below.
1.1 In these Terms and Conditions the following words shall have the following meanings:
“Buyer” means the entity, organisation or person who buys Goods from the Seller;
“Goods” means the articles and each part of them, set out in the Order; “Contract” means the contract between the Seller and the Buyer for the sale of the Goods by the Seller to the Buyer in accordance with these Terms and Conditions; “Force Majeure Event” means as defined in clause 13 below;”Intellectual Property Rights” means all patents, registered designs, registered trade marks and applications and the right to apply for any of the foregoing, copyright, design rights, topography rights, database rights, brands, utility model rights, trade marks, know-how, rights in proprietary and confidential information and all other rights or forms of protection having equivalent or similar effect to any of the foregoing anywhere in the world; “List Price” means the list of prices of the Goods maintained by the Seller as amended from time to time;“Order” means the Buyer’s order for purchase from the Seller, as set out in the Buyer’s purchase order form, the Buyer’s written acceptance of the Seller’s quotation, or overleaf, as the case may be;”Seller”means Halspan Ltd, a company incorporated in Scotland (Company No. SC194458) of Muirhouses, Bo’ness, Edinburgh, EH51 9SS; “Specification” means any specification for the Goods, including any drawings, that are supplied to the Seller by the Buyer, or produced by the Seller and agreed in writing by the Buyer; and “Terms and Conditions” means the terms and conditions set out in this document, as amended from time to time in accordance with the provisions contained herein.
1.2 In these Terms and Conditions, the following rules apply:
– (a)A reference to a party includes its personal representatives, successors or permitted assigns.
– (b) A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
– (c) Any phrase introduced by the terms “including”, “include”, “in particular” or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. FORMATION OF THE CONTRACT
2.1 These Terms and Conditions will apply to the Contract to the absolute exclusion of any other terms that the Buyer seeks to impose or incorporate, or which may be implied by trade, customer, practice or course of dealings.
2.2 The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Terms and Conditions. The Buyer shall ensure that the terms of the Order and any relevant Specification are complete and accurate.
2.3 No servant or agent of the Seller has power to vary these Terms and Conditions orally, or to make representations or promises about the condition of the Goods, their fitness for any purpose or any other matter whatsoever.
2.4 Unless otherwise expressly stated in writing signed for and on behalf of the Seller, all quotations and estimates by the Seller are invitations to treat and they are not intended to be, and shall not be deemed to constitute, offers capable of acceptance by any party. A quotation for Goods given by or on behalf of the Seller shall only be valid for thirty (30) days from its date of issue. The Buyer’s order is an offer by the Buyer to purchase Goods from the Seller under these Terms and Conditions, [which offer will be accepted by the Seller posting its acknowledgement of the order].
2.5 The Seller will provide the Goods at the request of any representative of the Buyer, unless otherwise instructed in writing by the Buyer.2.6 The Contract constitutes the entire agreement between the parties in respect of the Goods included in the Contract.
2.7 The construction, validity and performance of these Terms and Conditions and the Contract shall be governed by Scottish Law and the parties hereby submit to the jurisdiction of the Scottish courts.
2.8 These Terms and Conditions supersede all previous terms and conditions of sale issued by the Seller.
2.9 All notices to be served hereunder shall be served by first class pre-paid post or facsimile message at the registered office or principal trading address of the intended recipient. Notices shall be deemed served when they would ordinarily have been received in normal business hours according to the means of transmission of such notices.
3 PRICE AND PAYMENT
3.1 The price of the Goods shall be that in the Seller’s current List Price, or such other price as the parties may agree in writing. The price of the Goods is exclusive of VAT which, if applicable, shall be paid by the Buyer in addition at the then prevailing rate. The price of the Goods is also exclusive of any other applicable costs including packaging, transportation and insurance..
3.2 The Seller shall be entitled to invoice the Buyer for the Goods on or at any time after completion of delivery of the relevant Goods.
3.3 Payment of the price and VAT and any other applicable costs shall be due in full and in cleared funds within 30 days of the date of receipt of the invoice supplied by the Seller, unless otherwise agreed in writing.
3.4 If payment of the price or any part thereof is not made by the due date, the Seller shall be entitled to:
– (a) require payment in advance of delivery in relation to any Goods not previously delivered;
– (b) refuse to make delivery of any undelivered Goods whether ordered under the Contract or not and without incurring any liability whatever to the Buyer for non-delivery or any delay in delivery; and
– (c) terminate the Contract.
3.5 Quoted prices are based on costs prevailing at the time when they are given or agreed and are exclusive of VAT. The Seller shall be entitled to adjust the price of the Goods as at the time of delivery by such amounts as may be necessary to cover any direct or indirect price increase(s) sustained by the Seller after the date of the quotation or order in relation to the supply and/or delivery of the Goods.
3.6 No amount due and payable by one party to the other pursuant to the Contract will be set-off against any other amount due and payable or alleged to be due and payable by that other party to the first party whether pursuant to this Agreement or otherwise.
4 LATE PAYMENT
In the event that the Buyer fails to pay any amount due to the Seller under the Contract, the Seller shall be entitled, but not obliged, to charge the Buyer interest on the overdue amount, payable by the Buyer immediately on demand, from the due date up to the date of actual payment, after as well as before judgement, at the rate of four (4) percent per annum above the base lending rate for the time being of the Bank of Scotland plc. Such interest shall accrue on a daily basis and be compounded quarterly. Notwithstanding this clause 4, the Seller reserves the right to claim interest under the Late Payment of Commercial Debts (Interest) Act 1998.
Any description given or applied to the Goods is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Buyer hereby affirms that it does not in any way rely on any description when entering into the contract.
Where a sample of the Goods is shown to and inspected by the Buyer, the parties hereto accept that such a sample is so shown and inspected for the sole purpose of enabling the Buyer to judge for itself the quality of the bulk, and not so as to constitute a sale by sample.
7.1 Delivery of the Goods shall take place at the address specified by the Buyer, or such other location as the parties may agree (hereinafter in this clause 7 referred to as “Delivery Point”), at any time after the Seller notifies the Buyer that the Goods are ready for delivery. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are tendered for delivery.
7.2 The date of delivery specified by the Seller is an estimate only. Time for delivery shall not be of the essence of the Contract. The Seller shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
7.3 If the Seller is unable to deliver the Goods for reasons beyond its control, then the Seller shall be entitled to place the Goods in storage until such times as delivery may be effected and the Buyer shall be liable for any expense associated with such storage.
7.4 The Buyer shall be entitled to replacement Goods where the Goods have been damaged during transportation. The Buyer must notify the Seller of the damage within 24 hours of delivery.
7.5 The Buyer shall provide, at its own expense, the labour necessary for unloading the Goods, such labour to be available during normal working hours on the day notified by the Seller for delivery. The Buyer shall unload the Goods with reasonable speed. If the Seller’s delivery vehicle is kept waiting at the Delivery Point and delivery time included in the Contract, for an unreasonable time or is obliged to return to the Seller without completing delivery through lack of access or assistance to unload the Goods, an appropriate additional charge will be made.
7.6 Delivery of the Goods shall be deemed completed on the Goods’ arrival at the Delivery Point.
7.7 In the event that the Seller fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Buyer in obtaining replacement goods of a similar description or quality in the cheapest market available, less the price of the Goods. The Seller shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Buyer’s failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
7.8 If the Buyer fails to take delivery of the Goods within three (3) normal working days of the Seller notifying the Buyer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Seller’s failure to comply with its obligations under the Contract:
delivery of the Goods shall be deemed to have been completed at 9.00 am on the fourth normal working day following the day on which the Seller notified the Buyer that the Goods were ready for delivery; and
the Seller shall store the Goods until delivery takes place, and charge the Buyer for all related costs and expenses (including insurance incurred in such failure to take delivery and the consequential storage of the Goods by the Seller).
7.9 If ten (10) normal working days after the Seller has notified the Buyer that the Goods were ready for delivery the Buyer has not taken delivery of them, the Seller may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, account to the Buyer for any excess over the price of the Goods in the Contract or charge the Buyer for any shortfall below such price of the Goods.
7.10 The Buyer shall not be entitled to reject the Goods if the Seller delivers up to and including five per cent (5%) more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order invoice on receipt of notice from the Buyer that the wrong quantity of Goods delivered.
7.11 The Seller may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery of, or defect in, any instalment shall not entitle the Buyer to cancel or reject any other instalment.
8 TITLE AND RISK
8.1 Risk in the Goods shall pass to the Buyer when the Goods are delivered to the Buyer.
8.2 Title to the Goods shall remain with the Seller until the Buyer has paid all liquidated sums owed by the Buyer to the Seller in respect of the relevant Contract or otherwise.
8.3 Until title to the Goods passes to the Buyer they shall, following delivery of the Goods, be stored on the Buyer’s premises separately from any other goods and the Buyer shall:
– (a) not interfere with any identification marks or serial numbers on such Goods; and
– (b) maintain such Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery.
8.4 The Buyer is licensed by the Seller to use or agree to sell the Goods delivered to the Buyer subject to the revocation of such authority in accordance with sub-clause 8.5 below and subject to sub-clause 8.6 below.
8.5 Until title to the Goods passes to the Buyer, without prejudice to any other rights of the Seller, the Seller may at any time revoke the power of sale and use contained in sub-clause 8.4 above by notice to the Buyer if the Buyer is in default for longer than fourteen (14) days in the payment of any sum whatsoever due to the Seller whether in respect of the Goods or otherwise or if the Seller has bona fide doubts as to the solvency of the Buyer, whereupon the Buyer shall deliver up such Goods to the Seller.
8.6 Notwithstanding sub-clause 8.4 above, the Seller may at any time recover and re-sell Goods in which title shall not have passed to the Buyer. The Seller by its servants and agents shall be entitled to access to the Buyer’s premises or those to which the Buyer has a right of access where the Goods or some of them are stored or thought to be stored for the purpose of re-possession at any time.
8.7 Risk in Goods in which the Seller has retained or regained title (for whatever reason) shall only revert to the Seller following re-possession but not otherwise.
8.8 The Buyer shall indemnify the Seller against any costs, expenses or losses incurred or sustained by the Seller in exercise of the Seller’s rights under this clause 8.
8.9 If the Buyer shall become bankrupt or insolvent, or have a receiving order or administration order made against him or compound with his creditors, or, being a corporation, commence to be wound up, not being a members voluntary winding up for the purpose of reconstruction or amalgamation, or carry on its business under a receiver for the benefit of its creditors or any of them, or the Seller has bona fide doubts as to the solvency of the Buyer all sums payable to the Seller by the Buyer in respect of the Goods or otherwise shall become due and payable forthwith without requirement for any notice to be given and the Seller shall be released from its obligation to deliver such of the Goods as remain undelivered save on terms acceptable to the Seller, or if the Goods or any of them shall have been delivered, the power of sale and use contained in sub-clause 8.4 above shall be deemed revoked forthwith, and the Goods shall be delivered up to the Seller.
9.1 The Seller warrants that on delivery the Goods shall:
– (a) conform in all material respects with their description and any applicable Specification;
– (b) be free from material defects in design, material and workmanship.
9.2 Subject to sub-clause 9.3 below, if:
– (a) the Buyer gives notice in writing to the Seller within a reasonable time following delivery of discovery that some or all of the Goods do not comply with the warranty set out in sub-clause 9.1 above; and
– (b) the Seller is given a reasonable opportunity of examining such Goods; and
– (c) the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Buyer’s cost,
the Seller shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
9.3 The Seller shall not be liable for any of the Goods’ failure to comply with the warranty set out in sub-clause 9.1 above if
– (a) the Buyer makes any further use of such Goods after giving notice in accordance with sub-clause 9.2 above; or
– (b) the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice; or
– (c) the defect arises as a result of the Seller following any drawing, design or specification supplied by the Buyer; or
– (d) the Buyer alters or repairs such Goods without the written consent of the Seller; or
– (e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
9.4 Except as provided in this clause 9, the Seller shall have no liability to the Buyer in respect of the Goods’ failure to comply with the warranty set out in sub-clause 9.1.
9.5 Except as set out in these Terms and Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9.6 These Terms and Conditions shall apply to any repaired or replacement Goods supplied by the Seller.
9.7 Where the Goods are to be used in any process of manufacture by the Buyer, the Buyer must assure that the Goods are fit for such purpose before use in any such further manufacture.
9.9 Any Goods to be repaired or replaced shall be returned to the Seller at the Buyer’s expense, if so requested by the Seller.
9.10 Where the Goods have been manufactured and supplied to the Seller by a third party, any warranty granted to the Seller in respect of the Goods shall be passed on to the Buyer.
9.11 The remedies contained in this clause 9 are without prejudice to the other provisions of these Terms and Conditions, including, clauses 10 and 11 below.
10 EXCLUSIONS OF LIABILITY
10.1 No liability of any nature shall be incurred or accepted by the Seller in respect of any representation (save for a fraudulent misrepresentation) made by the Seller, or on its behalf, to the Buyer, or to any party acting on its behalf, prior to the making of the Contract where such representations were made or given in relation to:
– (a) the correspondence of the Goods with any description;
– (b) the quality of the Goods; or
– (c) the fitness of the Goods for any purpose whatsoever.
10.2 No liability of any nature shall be accepted by the Seller to the Buyer in respect of any express term of the Contract where such term relates in any way to:
– (a) the correspondence of the Goods with any description;
– (b) the quality of the Goods; or
– (c) the fitness of the Goods for any purpose whatsoever.
11 LIMITATION OF LIABILITY
11.1 Nothing in these Terms and Conditions shall limit or exclude the Seller’s liability for:
– (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
– (b) fraud or fraudulent misrepresentation; or
– (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or
– (d) any matter in respect of which it would be unlawful for the Seller to exclude or restrict liability.
11.2 Subject to sub-clause 11.1:
– (a) the Seller shall not be liable to the Buyer, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with the Contract (including any losses that may result from the Seller’s deliberate breach of the Contract by the Seller, its employees, agents or subcontractors); and
– (b) the Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, delict (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the Contract by the Seller, its employees, agents or subcontractors shall not exceed [£2,000,000]
12 INTELLECTUAL PROPERTY RIGHTS
12.1 All Intellectual Property Rights in and to the Goods that are proprietary to the Seller, and/or its suppliers, shall remain vested in the Supplier, and/ or its suppliers (as the case may be) and nothing contained in these Terms and Conditions shall have the effect of, or be deemed to have the effect of, transferring any such Intellectual Property Rights to the Buyer, its customers or any other parties.
12.2 All Intellectual Property Rights created and or produced from and/ or arising as a result of, the performance by, or on behalf of the Seller, of the Seller’s obligations under the Contract, including the manufacture and/ or production of the Goods, shall, so far as they are not vested in the Supplier on creation, become the absolute property of the Seller, and the Buyer shall do all that is reasonably necessary to ensure that all such Intellectual Property Rights so vest in the Seller including the execution of appropriate instruments or the making of agreements with third parties.
13 FORCE MAJEURE
The Seller shall not be liable to the Buyer for any delay or failure to perform any of its obligations under the Contract if such delay or failure results from a Force Majeure Event, and the Seller shall be entitled to a reasonable extension of its obligations under the Contract. If the delay persists for such time as the Seller considers unreasonable, it may, without liability on its part, terminate the Contract. A “Force Majeure Event” means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors.
14 RELATIONSHIP OF PARTIES
14.1 Nothing contained in these Terms and Conditions or the Contract shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.
14.2 No party will impose a condition on the other party without prior agreement.
15 ASSIGNMENT AND SUB-CONTRACTING
The Contract between the Buyer and Seller for the sale of Goods shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Buyer, without the prior written consent of the Seller.
The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
Should any provision of these Terms and Conditions be held illegal, invalid or unenforceable in any respect by any judicial or other competent authority under the law of any jurisdiction:
– (a) if by substituting a shorter time period or more restricted application of the provision, it would be valid and enforceable, such shorter time period or more restricted application shall be substituted;
– (b) is sub-clause 17(a) is not applicable:
(i) such provision shall, so far as it is illegal, invalid or unenforceable in any jurisdiction, be given no effect by the parties and it shall be deemed not to be included in these Terms and Conditions in that jurisdiction;
(ii) the other provisions of these Terms and Conditions shall be binding on the parties in that jurisdiction as if such provision were not included herein;
(iii) the legality, validity and enforceability of the provision in any other jurisdiction shall not be affected or impaired; and
(iv) the parties shall negotiate in good faith to agree an alternative provision in terms which as closely as possible achieve the intention of the parties in the original provision, do not substantially impair the parties’ original interests and do not render such provision invalid or unenforceable.