Terms and Conditions for the Sale of Goods
1.1 In these conditions BUYER means the person or Firm or Company who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller.
GOODS means the goods (including any installments of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions.
SELLER means Lancaster Fastener Co. Ltd. (registered in England under number 1522235)
CONDITIONS means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
CONTRACT means the contract for the purchase and sale of the Goods.
WRITING includes telex, cable, 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, reenacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. BASIS OF THE SALE
2.1 The Seller shall sell and the buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
2.3 The Seller’s employees or agents are not authorised to make any representation 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.
2.4 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.
2.5 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. ORDERS AND SPECIFICATIONS
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless until confirmed in Writing by the Seller’s authorised representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, 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.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) and the Buyer’s order (if accepted by the Seller).
3.4 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 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 for infringement of any patent, copyright, design or trade mark or any other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
3.5 The Seller reserves the right 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 the Seller’s specification, which do not materially affect their quality or performance.
3.6 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller 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 cancellation.
4. PRICE OF THE GOODS
4.1 The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. Where the Goods are supplied for export from the United Kingdom, the Seller’s published export price list shall apply. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the cost of labour, materials, transportation or other costs of manufacture), any change in delivery date, quantities or specifications for the Goods which is required by the Buyer, or any delay caused by any instruction of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport, packaging and insurance.
4.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
5. TERMS OF PAYMENT
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2 The Buyer shall pay the price of the Goods (less any discount to which the Buyer is entitled, but without any other deduction) within 30 days of the last day of the month in which the invoice is delivered, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request
5.3 If the Buyer fails to make any payment on due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.3.1 cancel the contract or suspend any further deliveries to the Buyer;
5.3.2 appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.3.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of four (4) per cent per annum above NatWest Bank plc base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
6.2 Any dates quoted for the Delivery of Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 Where delivery of the Goods is to be made by the Seller in bulk, the Seller reserves the right to deliver up to five per cent more or five percent less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered.
6.4 Where the Goods are to be delivered in installments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the installments in accordance with these Conditions or any claim by the Buyer in respect of one or more installments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.5 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 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.
6.6 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.6.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.6.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7. RISK AND PROPERTY
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:
7.1.1 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; or
7.1.2 In the case of the Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of it’s business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all money owing by the Buyer to the Seller shall (without any prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8. WARRANTIES AND LIABILITY
8.1 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship. Such warranty does not extend to goods, parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
8.2 The Seller shall not be liable to pay any warranty or other costs and shall not have any other liability to the Buyer or third parties for any defects in the Goods to the extent :
8.2.1 of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer.
8.2.2 any defect arises from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), improper usage or alteration or repair of the Goods;
8.2.3 the total price for the Goods has not been paid by the due date for payment;
8.2.4 any defect is due to improper storage, design or installation of the Goods by the Buyer and or third parties
8.2.5 the Seller is not the sole seller of the Goods to the Buyer unless and to the extent that the Buyer can prove the Goods are from the Seller’s goods supplied
8.2.6 the defect is due to hydrogen embrittlement.
8.3 Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976 the statutory rights of the Buyer are not affected by these Conditions.
8.5 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with the specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from 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. If delivery is not refused, and 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 have been delivered in accordance with the Contract.
8.6 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.
8.7 The Seller’s maximum liability to the Buyer for the supply of Goods howsoever arising (whether by contract, tort or otherwise, including negligence) shall not exceed the lower of the price paid or payable for the Goods sold within the last twelve (12) months prior to the notification by the Buyer of the Seller’s breach or alleged breach and one hundred thousand pounds sterling (£100,000) and the Seller shall not be liable for any consequential, indirect and/or financial losses. Nothing in these Conditions shall limit the Seller’s liability for death, personal injury or fraudulent misrepresentation.
8.8 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if any delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the forgoing, the following shall be regarded (but not limited to) as causes beyond the Seller’s reasonable control:
8.8.1 Act of God, explosion, flood, tempest, fire or accident;
8.8.2 war or threat of war, sabotage, insurrection, civil disturbance or requisition.
8.8.3 acts, restriction, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
8.8.4 import or export regulations or embargoes;
8.8.5 strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
8.8.6 difficulties in obtaining raw materials, labour, fuel, parts or machinery;
8.8.7 power failure or breakdown in machinery.
9. CANCELLATION OF ORDERS
Contracts may be cancelled only with the Seller’s prior written consent and subject to the Buyer indemnifying the Seller in full for any losses incurred by the Seller in respect of such cancellation.
If the Buyer:
10.1 (being an individual) enters into a deed of arrangement or commits an act of bankruptcy or compounds with its creditors or if a receiving order is made against him; or
10.2 if (being a Company) an order is made or a resolution is passed for the winding up of the Buyer (otherwise than for the purposes of a bona fide amalgamation or reconstruction) or the Buyer enters into a voluntary arrangement or compounds with its creditors or if a receiver or administrator is appointed over all or any of the Buyer’s assets or undertaking or if circumstances arise which entitle the court or a creditor to appoint a receiver, manager or administrator or which entitle the court to make a winding up order or if the Buyer takes or suffers any similar or analogous action in consequence of debt; or
10.3 commits any material breach of this or any other contract between the Seller and the Buyer which is irremediable (or, being remediable, has not been remedied by the Buyer within 7 days of receiving notice from the Seller requiring remedy), then the Seller may treat the contract as being at an end.
11.1 The Buyer shall indemnify the Seller against any and all liabilities claims and costs incurred by or made against the Seller as a direct or indirect result of the carrying out of any work required to be done on or to the goods in accordance with the requirements or specifications of the Buyer involving any infringement or alleged infringement of any rights of any third party.
11.2 The Seller shall have no liability to the Buyer in the event of Goods infringing or being alleged to infringe the rights of any third party. In the event that the Goods are or may be the subject of third party rights the Seller shall be obliged to transfer to the Buyer only such title as the Seller may have.
11.3 The Buyer shall notify the Seller forthwith of any claim made or action brought or threatened alleging infringement of the rights of any third party. The Seller shall have control over and shall conduct any such proceedings in such manner as it shall determine. The Buyer shall provide all such reasonable assistance in connection therewith as the Seller may request. The cost of any such proceedings shall be borne in such proportions as the parties shall determine.
12. COMPLIANCE WITH LAWS AND POLICIES
12.1 In performing their obligations under these terms and conditions, the parties shall comply with all applicable laws, statutes, regulations and codes from time to time in force including, without limitation, the Bribery Act 2010 and the Modern Slavery Act 2015 and all applicable laws, legislation, statutory instruments, regulations and governmental guidance having binding force whether local or national or international in any relevant jurisdiction.
12.2 The Buyer shall conduct its business in compliance with all lawful international sanctions regimes, and that they do not engage with any sanctioned parties. As such, the Buyer must; (a) be aware of, and fully comply with, all lawful sanctions regimes affecting their business; and (b) to carry out regular checks on their business partners to ensure that they are not designated, blocked or otherwise targeted by applicable economic or trade sanctions in order to avoid doing business with sanctioned parties.
13.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party as its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
13.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.3 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.
13.4 Save as expressly provided herein nothing in these Conditions shall confer on any third party any benefit or the right to enforce any provision of this Contract.
13.5 Any dispute arising under or in connection with these Conditions of the sale of the Goods shall be referred to by a single arbitration appointed by agreement or (in default) nominated on the application of either party by the President for the time being of the British Industrial Fastener Federation.
13.6 A The Contract shall be governed by the laws of England and the Seller and the Buyer irrevocably agree that the courts of England are to have exclusive jurisdiction to settle any disputes which may arise out of or in connection with this contract and that accordingly any suit or proceedings arising out of or in connection with this contract shall be brought in such courts.
13.6 B Nothing contained in this clause 13.6 shall limit the right of the Seller to take proceedings against the Buyer in any court of competent jurisdiction, nor shall the taking of proceedings in one or more jurisdiction by the Seller preclude the takings of proceedings by the Seller in any other jurisdiction, whether concurrently or not, to the extent permitted by the law of such other jurisdiction.