Conditions of Sale
1.1 In these Conditions the following expressions shall have the following meanings:
1.1.1 "Additional Items" means the following where incurred:
(i) packaging costs under Condition 7.4;
(ii) any taxes (including value added tax), duties or other charges levied by any governmental or other authority in respect of or by reason of the sale, delivery, export or import of the Goods or any part thereof but excluding taxes assessed on profits or gains;
(iii) Application Support (if any);
(iv) storage costs under Condition 7.5;
(v) the cost of samples under Condition 3.5;
1.1.2 "Application Support" means any works and services provided by the Seller in conjunction with the sale of Goods;
1.1.3 "Connected Goods" means all equipment not sold by the Seller but used in conjunction with the Goods;
1.1.4 "Contract" means the quotation, these Conditions of Sale, and any other document incorporated in a contract between the Seller and the Customer;
1.1.5 "the Customer" means any person firm or company receiving a quotation from and/or placing an order with the Seller;
1.1.6 "Delivery Period" means 1 month after the estimated delivery date;
1.1.7 "Goods" means all and every item of goods or part thereof supplied by the Seller and where relevant includes any work carried out by the Seller on items supplied by the Customer and includes any services supplied by the Seller;
• "Seller" means Arnold (Engineering Plastics) Limited and reference to the acknowledgement, consent, authority or agreement of the Seller shall mean acknowledgement, consent, authority or agreement in writing signed by a Director of the Seller;
• "Transgression" means any breach of contract or tort or other act, default, omission or statement of the Seller, its employees, agents or subcontractors in respect of which the Seller is liable to the Customer;
1.1.10 "Warranty Period" means the following period from the date of delivery (unless another period is specified by the Seller, in which case that other period shall apply):
• for impact protection products, the period of time set out in the user information guide; and
• for all other Goods, 6 months.
2.1 These Conditions apply to all contracts for the sale of Goods by the Seller and supersede any previous Conditions of Sale published by the Seller. No additions or modifications to or terms or conditions inconsistent with these Conditions shall be binding upon the Seller unless agreed by the Seller in a document expressly referring to a modification, alteration, variation or addition of or to the relevant Condition or Conditions.
2.2 All brochures, catalogues, price lists, samples, particulars of dimensions and other advertising or descriptive material submitted to the Customer are intended to be approximate only and to give a general impression of the Goods. Unless expressly incorporated the same shall not form part of the Contract. The Seller reserves the right to make minor alterations to the design specification or construction of the Goods without prior notification to the Customer.
• The Customer shall be responsible for complying with any legislation or regulations (of the United Kingdom or any other country) governing the export and import of the Goods into the country of destination (and any other country through which the Goods pass in transit) and for the payment of any duties thereon. The Customer shall fully indemnify the Seller against any fines, penalties, costs, claims, damages, losses and the expenses suffered by the Seller as a result of the Customer failing to comply with this Condition 2.3.
• Save as specifically agreed otherwise by the Seller in writing, the intellectual property rights in the design, drawings, plans, specifications and the like of the Goods are vested in the Seller.
3.QUOTATION AND ORDERS
3.1 No contract for the supply of Goods will be created by the acceptance of a quotation or an order until the Seller acknowledges the order or commences work on the order.
3.2.1 The Seller reserves the right to refuse to accept any order based upon a quotation unless the quotation is stated to be open for a defined period and the quotation has not been withdrawn in that period;
3.2.2 Where any order is based upon the standard price list of the Seller then, subject to Condition 3.3 the price shall be valid provided that delivery is to take place within 30 days from the date of order.
3.3 The Seller reserves the right to increase the price quoted per unit for Goods if the Customer orders less than the number of units upon which the quotation was based or if the cost of raw materials increases by more than 2 percent.
3.4 The Seller reserves the right to increase or decrease the number of items in the Goods to be supplied by a variation not exceeding 10 per cent and to make an appropriate increase or decrease (as the case may be) to the price. It is agreed that such a variation shall be so slight as to make it unreasonable for the Customer to reject the delivery.
3.5 Any samples submitted with the quotation or at the Customer's request must be returned within 90 days of receipt and if not so returned the cost of samples may, at the discretion of the Seller, be added to the Contract price.
3.6 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 Customer, the Customer 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 Customer's specification.
3.7 The Seller reserves the right (but is not under a duty) to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or, where the Goods are to be supplied to specification, which do not materially affect their quality or performance.
3.8 If the Customer wishes to change or vary the contract, the Seller reserves the right to make appropriate changes to the price, delivery or specifications of the Goods as a condition of granting consent to the change.
4.PRICE AND PAYMENT TERMS
4.1 Unless otherwise stated any Additional Items shall be added to the price.
4.2 Payment in full (without any deduction by way of set off or counter claim) for the Goods (and Additional Items if any) shall be due and payable in POUNDS STERLING within 30 days of the end of the month of the Seller's invoice.
4.3 The Seller reserves the right to charge interest at 4% above the Lloyds TSB Bank PLC base lending rate for the time being on any overdue payments until repaid in full.
4.4 The Seller reserves the right to recover from the Customer all direct expenses reasonably incurred by the Seller in the collection of any overdue sums.
4.5.1 Without prejudice to any other rights of the Seller, if there is reason to doubt that the amounts due from the Customer under the terms of the Contract will be paid in full according to the terms thereof, then the Seller reserves the right to require payment in full before delivering or performing any other work or services whatsoever for the Customer;
4.5.2 The Customer shall indemnify the Seller against all losses sustained or extra expenditure incurred as a result of such a suspension of manufacturing, ordering, delivery or other work or services including a reasonable allowance for storage;
4.5.3 Where payment requested in accordance with this Condition is not received within 30 days of demand, the Seller reserves the right to sell or dispose of the Goods produced for the Customer and to recover any additional loss from the Customer.
5.1.1 Legal and beneficial ownership of the Goods is to remain vested in the Seller until both the Goods and any Additional Items have been paid for in full, and until full payment has been received by the Seller under any other contract with the Customer for which payment is outstanding;
5.1.2 If the Customer obtains possession of the Goods prior to such payment, the Customer shall hold the Goods in a separate and identifiable form as bailee and fiduciary agent for the Seller;
5.1.3 Failure to pay the full amount when due shall give the Seller, or its employees or agents, the right to repossess the Goods (and enter the Customer's premises for that purpose if necessary) with or without notice and without liability and, at its option, to avail itself of any other legal remedy;
5.1.4 The Seller shall have the right to sell the Goods once they have been re-possessed under this Condition.
5.2 Notwithstanding this Condition 5, the Seller shall be entitled to maintain an action for the price of the Goods and Additional Items at any time after the date when payment is due.
5.3 If prior to payment in full being made the Goods become commingled with similar goods belonging to the Customer and/or any third party the Customer shall hold the Seller's proportion of the commingled Goods or their proceeds of sale on trust for the Seller. The Seller shall be treated as a tenant-in-common of the commingled goods and the Customer shall hold as trustee for the Seller's proportion and (if the commingled goods have been sold) pay to the Seller its due proportion of the proceeds of sale.
5.4 Where the Goods are attached to either buildings or plant or machinery of the Customer, the Customer agrees that it is not its intention that the Goods thereby become fixtures and fittings or part of the plant or machinery, but the Goods shall remain as chattels and be severable from the buildings or plant or machinery.
6.PERFORMANCE AND FORCE MAJEURE
6.1 The Seller shall take all reasonable steps to perform its obligations and deliver within the time specified, but such times are estimates only. The Seller shall not be liable for expenses losses or damages caused by late performance or delay in delivery and delays shall not entitle the Customer to rescind the Contract.
6.2 Without prejudice to the generality of Condition 6.1, the Seller shall have no liability for any expenses losses or damages caused by delay or default in performance of any obligation caused directly or indirectly by breakdown or unavailability of plant or machinery, failure of raw material or supply of raw material, inability to obtain sufficient labour or sufficient skilled labour or any other cause or causes beyond the reasonable control of the Seller. If such cause or causes prevent delivery of Goods within the Delivery Period either party may cancel the order on giving written notice to the other at least 28 days before the Seller may reasonably expect to complete the order without liability to compensate the other party for any loss or damage whatsoever sustained by reason of the non delivery or non acceptance of those Goods.
6.3 The Seller reserves the right to make part deliveries and to submit invoices for Goods supplied as part of an order.
7.RISK CARRIAGE PACKAGING AND STORAGE
7.1 Where no specific instructions about the manner in which the Goods are to be delivered to the Customer or the delivery address are given, the Seller reserves the right in its absolute discretion to choose the means of carriage to the Customer and to direct the Goods to the Customer's last known business address. Any such specific instructions must be given to the Seller at the time of order and where such specific instructions are given the Seller reserves the right to charge for delivery.
7.2 From the time when the Goods are despatched from the Seller's premises the risk of any loss, damage to or deterioration of the Goods shall be and remain with the Customer notwithstanding that the Seller may arrange carriage. The Seller shall be under no liability arising from their choice of carrier or carriers, or from the act or omission of such carrier or carriers, and the Customer waives all rights under Section 32(2) of the Sale of Goods Act 1979 in addition to any other rights hereby excluded or restricted.
7.3 In the case of sales where the Seller delivers directly or contracts directly with the carrier then the Seller will repair or (at its option) replace or (at its option) issue a credit note in respect of Goods lost or damaged in transit (other than by default of the Customer), provided that:
7.3.1 the Customer specifies on the carrier's consignment note details of such loss or damage; and
7.3.2i n respect of complete non arrival of all of the Goods comprised in the Contract notification is made to the Seller within 14 days of the date of despatch of the Goods (the date of despatch to be identified from the copy despatch note sent to the Customer) and separately to the carrier within the period stipulated by the carrier's terms of carriage for claims against the carrier; and
7.3.3 in respect of damage to all or part of the Goods or loss of part of the Goods comprised in the Contract notification is made to the Seller within 5 days of delivery of the Goods (which will normally be stated on the carrier's consignment note) and separately to the carrier within the period stipulated by the carrier's terms of carriage for claims against the carrier.
On request, the Seller will inform the Customer of the name and address of the carrier and any time limit for claims stipulated by them. It is agreed that these time limits constitute a reasonable opportunity to examine the Goods and a reasonable time to intimate rejection.
7.4 If it is necessary to despatch Goods in crates, cases, pallets, stillages or skids the Seller reserves the right to charge for packaging. The amount charged for packaging will be credited in full to the Customer if the packaging is returned in good condition at the expense of the Customer within 1 month of delivery.
7.5 Once the Goods are ready for delivery the Seller shall be entitled to invoice and be paid for the Goods as if they had been delivered if for any reason the Customer does not arrange for or accept delivery. The Seller shall arrange storage for the Goods and the cost of storage shall be added to the Contract price.
7.6 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 Conditions or any claim by the Customer in respect of any one or more instalments shall not entitle the Customer to treat the Contract as a whole as repudiated.
8.TERMS AND REPRESENTATIONS
8.1 THESE CLAUSES DEFINE THE CUSTOMER'S RIGHTS IN RESPECT OF ANY LOSS OR DAMAGE CAUSED BY THE GOODS, CONNECTED GOODS OR APPLICATION SUPPORT OR FOR ANY STATEMENTS MADE BY THE SELLER THEIR EMPLOYEES OR AGENTS. CUSTOMERS ARE ADVISED TO READ THESE PROVISIONS CAREFULLY.
The Seller's prices are kept as low as practical and the circumstances of their business preclude full indemnity insurance being obtained at a price which would enable the Seller to sell the Goods at a competitive price. ACCORDINGLY CUSTOMERS ARE ADVISED TO CHECK THAT THEY ARE COVERED BY INSURANCE AGAINST ANY LOSS OR DAMAGE THEY MAY SUSTAIN. THE SELLER DOES NOT INCLUDE ANY RESERVE FOR POTENTIAL LIABILITY.
8.2 The Seller agrees to repair or (at its discretion) replace or (at its discretion) issue a credit note in respect of Goods which are found to be defective (fair wear and tear excepted) and which are returned to the Seller within the Warranty Period provided that each of the following are satisfied:
8.2.1 notification of any defect is given to the Seller immediately upon it becoming apparent to the Customer;
8.2.2 the Goods have only been operated under normal operating conditions and, if relevant, in accordance with any user information guide provided and have only been subject to normal use;
8.2.3 the Goods are returned to the Seller's premises at the Customer's expense;
8.2.4 any Goods or parts of Goods replaced shall become the property of the Seller;
8.2.5 no work whatsoever (other than normal and proper maintenance) has been carried out to the Goods or any part of the Goods without the Seller's prior written consent;
8.2.6 the defect has not arisen from a design made, furnished or specified by the Customer;
8.2.7the Goods have been assembled or incorporated into other goods only in accordance with any instructions issued by the Seller;
8.2.8 the defect has not arisen from a design modified by the Customer;
8.2.9 the defect has not arisen from an item manufactured by a person other than the Seller. In respect of any item manufactured by a person other than the Seller, the Customer shall only be entitled to the benefit of any warranty or guarantee provided by such manufacturer to the Seller;
8.2.10 the defect has not arisen due to incorrect installation or storage of the Goods by the Customer;
8.2.11 the Customer has taken all necessary and reasonable care of the Goods and the defect has not arisen due to any act or omission of the Customer.
8.3 The Seller accepts liability:
8.3.1 for death or personal injury to the extent that it results from the negligence of the Seller, its employees (whilst in the course of their employment) or its agents (in the course of the agency);
8.3.2 for any breach by the Seller of any statutory undertaking as to title, quiet possession and freedom from encumbrance.
8.4 Subject to Conditions 8.2 and 8.3 from the time of despatch of the Goods from the Seller's premises the Customer shall be responsible for any defect in the Goods or loss, damage, nuisance or interference whatsoever consequential economic or otherwise or wastage of material resulting from or caused by or to the Goods, the Connected Goods or Application Support. In particular the Seller shall not be liable for any loss of profits or other economic losses. The Seller accordingly excludes all liability for the same.
8.5 At the request and expense of the Customer the Seller will test the Goods to ascertain performance levels and provide a report of the results of that test. The report will be accurate at the time of the test, to the best of the belief and knowledge of the Seller, and the Seller accepts no liability in respect of its accuracy beyond that set out in Condition 8.2.
8.6 Subject to Condition 8.5 no condition, warranty or other term, express or implied (by statute or otherwise) is given by the Seller that the Goods, the Connected Goods (whether or not the Seller or its employees or agents have recommended their use) or the Application Support either separately or in conjunction are of any particular quality or will enable the Customer to attain any particular performance or result, or will be suitable for any particular purpose or use under specific conditions or will provide any particular capacity, notwithstanding that the requirement for such performance, result or capacity or that such particular purpose or conditions may have been known (or ought to have been known) to the Seller, its employees or agents.
8.7.1 To the extent that the Seller is held legally liable to the Customer for any single Transgression, the Seller's liability for the same shall not exceed the price of the Goods provided that a number of Transgressions, whether successive or concurrent, which together result in or contribute to substantially the same loss or damage shall be treated as a single Transgression;
8.7.2 The restriction of liability in Condition 8.7.1 shall not apply to any liability accepted by the Seller in Condition 8.3.
8.8 If any exclusion or limitation of liability or any other provision contained in the Contract is held invalid under any applicable statute or rule of law, it shall to that extent be deemed omitted, but if the Seller thereby becomes liable for any liability which would otherwise have been excluded or limited, such liability shall be subject to the other exclusions limitations or provisions set out in Condition 8.
9.1 The Seller shall, at its option, be entitled by notice to terminate all or any of its contracts with the Customer forthwith and recover all expenses, losses and damage resulting to the Seller including (but without limitation to) loss of profit or other consequential loss if:
9.1.1(a) the Customer has a bankruptcy petition presented against him or a bankruptcy order is made;
(b) the Customer makes or seeks to make any composition or arrangement with his creditors;
(c) the Customer makes a proposal to his creditors for a voluntary arrangement or applies for an interim order (within the meaning of Section 286 Insolvency Act 1986);
(d) an encumbrancer takes possession of any of the Customer's assets, or any of the Customer's property is taken in execution or process of law;
(e) a petition is presented or an order is made or a resolution is passed for the winding-up of the Customer;
(f) a petition is presented or an order is made for an administration order to be made in relation to the Customer;
(g) the Customer's directors make a proposal for a voluntary arrangement with the Customer's creditors;
(h) the Customer is unable to pay its debts (within the meaning of Section 123 Insolvency Act 1986);
(i) a receiver or administrative receiver is appointed over any of the Customer's assets; or
9.1.2 the Customer fails to make any payment owed to the Seller on the due date; or
9.1.3 the Customer fails to make payment in advance, when requested in accordance with Condition 4.5 above, within 7 days of being requested to do so; or
9.1.4 the Customer fails to take delivery of or to collect the Goods within 14 days of being notified by the Seller that they are to be delivered or are ready to be collected; or
9.1.5 the Customer is in breach of the terms and conditions of any contract with the Seller (including breach of these Conditions) and shall fail to remedy the same within 21 days of notice specifying the breach and requiring remedy (if the breach shall be remediable).
9.2 Clauses 3.4, 4.5.2 and 8 shall continue in effect following termination of this contract however caused.
10.DIES AND TOOLS
10.1 Dies and tools are the property of the Seller who will normally, but without obligation to do so, retain for not more than three years from the date of completion of the last order. Only where specifically agreed between the parties will dies and tools become the property of the Customer.
10.2 The Customer's own dies and tools are operated at the Customer's sole risk and responsibility and without any liability either in contract or in tort being attached to the Seller.
10.3 Formers are charged for at cost and storage of the formers is the responsibility of the Customer. If the formers are not collected by the Customer after a reasonable time after completion of the order, they will be disposed of by the Seller.
11.1 If any property of whatsoever nature of the Customer is used in connection with the Goods (whether for the purpose of manufacture, display or any other reason) the Customer shall indemnify the Seller for any loss or claim suffered by the Seller as a result of using such property. If such property has not been removed within three months from the date on which the price becomes payable, the Seller reserves the right to charge a storage fee.
11.2 If any protective film on/over material supplied by the Customer becomes detached from the Customer's material or is otherwise damaged, for example as a result of manufacturing, the Seller will endeavour to cease manufacturing the order and inform the Customer of this as soon as is reasonably practicable. The Customer must, within 7 days, give written notice to the Seller detailing a proposed course of action. If no such notice is received the Seller may, at its discretion, continue to manufacture, return such Goods to the Customer or require the Customer to collect the Goods, any costs incurred to be paid by the Customer. The Seller will not be liable for the consequences of the protective film becoming detached and any subsequent costs incurred by the Seller or the Customer as a direct or indirect consequence of the film becoming detached will be the responsibility of the Customer.
11.3 If any material supplied by the Customer is supplied with inclusions or other flaws of any kind which are not discovered until part way through being worked on by the Seller, then the Customer will pay the costs and expenses incurred by the Seller for wasted time, materials and any other liabilities and will supply replacement material to the Seller free of charge.
12.1 Any notice, consent, notification, acknowledgement, authority or agreement required or referred to in the Contract shall be:
12.1.1 in writing; and
12.1.2 given to the party for whom it is intended at such party's registered or main office or last known address; and
12.1.3 given by registered or recorded delivery post, telex, or telefax transmission and shall be deemed to have been received 5 days after the date of posting or 1 day after the date of transmission as the case may be.
13.1 The Contract shall be governed in all respects by English Law and be subject to the sole jurisdiction of the English Courts.