ANCHOR MAGNETS Ltd - STANDARD TERMS AND CONDITIONS FOR THE SALE OF GOODS Document No. QD50 Rev 3; January 2008
The Buyer’s attention is in particular drawn to the provisions of Condition 10.4
1.1 In these Conditions the following words have the following meanings:
the Buyer - the person(s), firm or company who purchases the Goods from the Company;
the Company - Anchor Magnets Ltd;
Contract - any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these Conditions;
Delivery Point - the place where delivery of the Goods is to take place under Condition 4;
Goods - any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
1.2 In these Conditions references to any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Conditions references to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.4 In these Conditions headings will not affect the construction of these Conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under Condition 2.3 the Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These Conditions apply to all the Company’s sales and any variation to these Conditions and any representations about the Goods shall have no effect unless expressly agreed in writing and signed by a director of the Company. Nothing in this Condition will exclude or limit the Company’s liability for fraudulent misrepresentation.
2.4 Each order for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to purchase Goods subject to these Conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of order (an “Order Acknowledgement”) is issued by the Company or (if earlier) the Company delivers the Goods to the Buyer.
2.6 The Buyer must ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no contract will come into existence until the Company despatches the Order Acknowledgement to the Buyer or delivers the Goods to the Buyer. Any quotation is valid for a period of 30 days only from its date, provided that the Company has not previously withdrawn it.
2.8 The Buyer agrees that with respect to schedules/blanket orders for products supplied which are subject to call-off and invoiced separately, these invoices will become due and payable on agreed terms in their own right notwithstanding that they are part of a schedule/blanket order.
3.1 The description of the Goods shall be as set out in the Company quotation or (in the event that no quotation has been provided) the Contract.
3.2 All drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of the Contract.
4. DELIVERY, INSPECTION AND ACCEPTANCE
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place at the Company’s place of business.
4.2 The Buyer will take delivery of the Goods within three days of the Company giving it notice that the Goods are ready for delivery.
4.3 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
4.4 Subject to the other provisions of these Conditions the Company will not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, loss of profits, loss of business, depletion of goodwill and like loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the Company’s negligence), nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 180 days.
4.5 If for any reason the Buyer will not accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:
4.5.1 risk in the Goods will pass to the Buyer (including for loss or damage caused by the Company’s negligence);
4.5.2 the Goods will be deemed to have been delivered;
4.5.3 the Company may store the Goods until delivery whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance);
4.5.4 in the event that the Goods have been manufactured to standard specifications used by the Company, the Buyer shall pay to the Company as liquidated damages a sum equivalent to 10% of the Contract price of the Goods;
4.5.5 in the event that the Goods have been manufactured to specifications provided by the Buyer, the Buyer shall pay to the Company as liquidated damages a sum equivalent to the contract price of the Goods.
4.6 The Buyer will provide at its own expense at the Delivery Point adequate and appropriate equipment and manual labour for loading and (if appropriate) unloading the Goods.
4.7 If the Company delivers to the Buyer a quantity of Goods of up to 5% more or less than the quantity referred to in the Contract by the Company the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such Goods at the pro rata Contract rate.
4.8 The Buyer shall have a period of three days following delivery and before any use is made of the Goods to inspect the Goods. The Buyer must notify the Company in writing of any alleged defect, shortage in quantity, damage or failure to comply with any specification within this three-day period. If the Buyer shall fail to comply with these provisions the Goods shall be conclusively presumed to be in accordance with the Contract and free from defect or damage which would be apparent on a reasonable examination of the Goods and the Buyer shall be deemed to have accepted the Goods. Where the defect or failure would not have been apparent on reasonable inspection, the Buyer must notify the Company within three days after discovery of the defect or failure.
4.9 If the Goods are not in accordance with the Contract for any reason, the Buyer’s sole remedy shall be limited to the Company making good any shortage or deficiency by replacing such Goods (or the part in question) free of charge or, if the Company shall elect, by refunding to the Buyer the price of the Goods (or a proportionate part of the price).
4.10 If the Buyer wishes to return the Goods to the Company during the three-day testing period referred to in condition 4.8, authority must be obtained from the Company. Where such authority is given, the cost of returning the materials will be the responsibility of the Buyer. The Company reserves the right to reduce the amount of credit issued where the Buyer has failed to adequately pack and wrap the Goods.
5.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any non-delivery of Goods (even if caused by the Company’s negligence) unless written notice is given to the Company within three days of the date when the Goods would in the ordinary course of event have been received.
5.3 Any liability of the Company 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.
6.1 The Goods are at the risk of the Buyer from the time of delivery.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full (in cash or cleared funds) 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 Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer must:
6.3.1 hold the Goods on a fiduciary basis as the Company’s bailee;
6.3.2 store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the Company’s property;
6.3.3 not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.4 maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company; and
6.3.5 hold the proceeds of the insurance referred to in Condition 6.3.4 on trust for the Company and not mix them with any other money, nor pay the proceeds into an overdrawn bank account.