TERMS & CONDITIONS OF CONTRACT
1. These conditions shall apply to all quotations given and all contracts made or to be made by McFARLANE TELFER LIMITED (“the Seller”) for the sale of all goods (“the goods”). No alteration or qualification of these conditions whether issued by the person with whom the Seller is contracting (“the buyer”) or contained in the Buyer’s order or otherwise, shall be effective unless expressly accepted by a director of the Seller in writing. Any terms or conditions submitted, proposed or stipulated by the Buyer in whatever form and at whatever times, whether written or oral, are expressly waived and excluded.
2. This contract is made on the basis (which the Buyer represents and confirms to be correct) that no representations of any kind whatsoever relating to the goods or to the performance of the goods of this contract have been made or purportedly made by or on behalf of the Seller.
3. The Buyer assumes entire responsibility for the goods being suitable for his or any particular purpose and no terms or conditions whatsoever may be implied herein as to suitability for any such purpose.
4. (a)In the event that any of the goods are shown to have been defective on leaving the Seller’s premises, the seller will upon such goods being returned (carriage paid) to its premises or to such other place as it shall specify give credit for the price paid for them or (at its option) repair or replace the same and the seller shall not be under any other liability whatsoever for any defects in the goods provided always that its liability hereunder shall not arise unless the Buyer has within 48 hours of delivery of the goods made a written claim to the seller setting out fully and in detail the nature of the alleged defects.
(b) No claim will be met by the seller if, in its opinion, the goods have been misused or subjected to neglect, carelessness, or abnormal conditions or involved in any accident or attempt at repair replacement or modification or dealt with contrary to any directions issued by the Supplier.
(c) Without limiting the foregoing, in no circumstances will the seller’s liability for breach of this contract or for any misrepresentation or for any claim in connection with this contract exceed the invoice value of the goods to which the sum relates.
(d) To the extent permitted by law, all conditions, warranties or obligations whether express or implied by statute, common law or otherwise are excluded and subject thereto the seller shall not be under any liability for claims for loss of profit or arising out of or in connection with any loss of or injury to or damage whether to persons or property.
5. Payment for all goods must be made with order. In the event of the seller granting the buyer a credit facility:
(a) Payment for all goods supplied by the seller to the Buyer shall be made in cash upon the following terms 100% of the contract price for the goods shall be payable by 30th of month following invoice date, or delivery of the goods whichever shall be the earlier.
(b) Time for payment shall be of the essence in any contract for the sale of goods by the seller and payment shall in all cases be made in full without any deduction or set off or counter-claim.
(c) Subject to Clause 14 below, in the event of any order being cancelled by the Buyer prior to manufacturer of the goods, the seller shall be entitled to charge the Buyer 20% of the contract price of the goods. If manufacture has been commenced the buyer shall pay the cost of labour plus materials incurred plus the 20% charge.
(d) Notwithstanding the foregoing, the seller shall be entitled, in any case to require the Buyer to pay in full for the goods before delivery.
6. (a) Notwithstanding delivery the property in the goods will remain in the seller and subject to the following provisions of this paragraph the Buyer will hold the goods as bailee for the seller until payment in full of the price for the goods and all other sums due from the Buyer to the Seller on any account whatsoever (in this paragraph referred to as “payment”).
(b) If the Buyer (before payment) sells the goods to any third party it shall, as between the Buyer and such third party, sell as principal but as between the Buyer and the seller, the Buyer shall sell as the fiduciary agent of the Seller.
(c) The Buyer shall hold such part of the proceeds of any such sale as equates to the aggregate amount due from the Buyer to the seller on any account whatsoever separate and for the seller’s account pending payment or shall if the seller so requires authorise and direct such third party to pay to the seller a like part sum due to the Buyer in respect of the goods so sold and assign to the seller such part of the debt owed to the buyer by such third party.
(d) The Buyer shall keep the goods in good condition and separate and clearly identified as the property of the seller until payment. (e) After delivery and until payment the Buyer shall keep the goods fully insured and if the goods are lost, damaged or destroyed shall hold the proceeds of insurance for and to the order of the Buyer pending payment.
(f) The Seller may at any limes without notice recover possession of the goods the property of the Seller and the Buyer grants to the seller irrevocable licence to enter for that purpose any premises then occupied by the buyer.
(g) The seller shall be entitled to maintain an action for the price of the goods, notwithstanding that the property in them has not passed to the buyer.
7. Unless otherwise stated in writing prices quoted buy the seller exclude the cost of carriage, which must be paid with payment for the goods. Prices are also exclusive of value added tax which, where applicable, will be separately charged at the appropriate rate.
8. The Seller may modify without notice existing designs and specifications from time to time as is may in its sole discretion consider expedient.
9. Notwithstanding that any item of the goods has at any time been shown to the Buyer this contract does not constitute a sale by sample.
10. On the happening of any of the following events, namely;
(a) If the Buyer is in any way whatever in breach of any of the conditions of this contract and in particular (but without limiting the foregoing) it the Buyer fails to make payment when due;
(b) If the Buyer shall cease or threaten to cease to carry on the whole or any part of its business or shall be unable to pay its debts within the meaning of sections 123 and 268 of the Insolvency Act 1986 (“the Act”) or any statutory modification or re-enactment of the same; (c) If any distress, execution, sequestration or other process is levied or enforced upon or sued out against property of the Buyer and is not paid out or discharged within 7 days;
(d) If, in the case of the Buyer being an individual or partnership, there is presented to the court a petition for bankruptcy order in respect of that individual or any one or more of the individuals in such partnership or such individual or such one or more individuals shall make a proposal for a voluntary arrangement as defined in Section 253 of the Act or shall enter into any such arrangement with his creditors or shall take or suffer any other action in consequence of debt; or if, in the case of the Buyer being a company, it shall pass a resolution for winding-up (other than for the purpose of and followed by a reconstruction or amalgamation) or shall summon a meeting to pass any such resolution or shall have a petition for a wind-up order presented against it or shall have a petition for an administration order presented in relation to it or a receiver shall be appointed of all or any part of its property assets or undertaking or a proposal shall be made for a voluntary arrangement as defined in section 1 of the act or shall enter into any other arrangement with its creditors or take or suffer any other action in consequence of debt, then the seller shall be entitled (at its sole option) :-(i) either
(A) forthwith to treat the whole contract as repudiated and terminated and to claim damages for any loss caused to the Seller by such termination ; or (B) to require as a condition precedent to the making of any further deliveries under this contract or any other contract it may have with the Buyer the Payment forthwith to the Seller of the remaining unpaid price of any deliveries already make (whether or not such price would otherwise be due for payment) together with the whole price of further deliveries and, in default of such payment in full, to exercise the like right to that set out in (A) in relation to this or any other such contract ; and (ii) in addition to any right of lien to which it may be entitled to by law, to a general lien on all goods of the Buyer in the Seller’s possession (although such goods or some of them may have been paid for) for the remaining unpaid price of any other goods sold and/or delivered to the Buyer buy the Seller under the same or any other contract ; the exercise of any of the rights of the Seller under this paragraph shall not prejudice the exercise of any of its other rights given hereunder or at Common Law.
11. In the event of any increase in the Seller’s cost of carrying out this contract (including but not limited to the cost of materials, labour, transport or insurance, variations in tax or duty or alterations of exchange rates) between the date of this contract and the date of delivery of the goods, the price of the goods may (at the Seller’s sole discretion) be increased by the seller without notice by an amount sufficient to compensate it for such increase.
12. The Seller shall not be responsible if the performance of any of its obligations hereunder is prevented, hindered, delayed or in any other way interfered with whether directly or indirectly by reason of war, act of terrorism, civil commotion, strike, lock-out or any other industrial dispute, flood fire, bad weather, accident or stoppage to works, machinery, breakdowns, shortage of or difficulty in obtaining labour, materials, equipment, fuel, power, transport or by reason of any cause whatsoever beyond the seller’s reasonable control or that of its subcontractors (however remote) or suppliers and in the event of such prevention hindrance delay or interference the seller may defer or determine this contract or any part of it without any liability to the Buyer and prejudice to its other rights. Any of the causes enumerated herein shall e deemed to prevent hinder delay or otherwise interfere with the Seller or its subcontractors or suppliers if it affects the performance of the aggregate of their obligations both under this and other contracts whether the Buyer, the seller or third parties. The time of delivery shall never be or become of the essence of this contract.
13. The Seller’s consent in writing must be obtained for the supply outside the European Economic Community of any goods supplied hereunder except where such goods are supplied as an integral part of the equipment. The Buyer hereby undertakes to obtain a like covenant from any person whom it may supply such goods except where such goods are supplied by it as an integral part of other equipment.
14. The contract may not be cancelled by the Buyer except with the seller’s written consent and on terms specified by theseller.
15. The Buyer shall not assign or transfer or purport to assign or transfer any contract to which these conditions apply or the benefit thereof to another person.
16. This contract shall be governed by English law and any legal proceedings against the Seller shall take place only in the Courts in England.
17. PO required procedure (Appendix A)
