1.1 The definitions and rules of interpretation in this condition apply in these conditions.
Buyer: the person, firm or company who purchases the Goods from the Company.
Company: Scotech Welding Supplies Ltd – Registered in Scotland 173249.
Contract: any contract between the Company and the Buyer for the sale and purchase of the Goods, incorporating these conditions, together with any terms expressly stated in the Company’s Quotation and/or Sales Acknowledgement.
Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company (including any part or parts of them).
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.2 the Contract shall be on these conditions (together with any terms expressly stated in the Company’s Quotation and/or Sales Acknowledgement) 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). In the event of any conflict, any terms set out in the Company’s Quotation and/or Sales Acknowledgement shall take precedence and shall apply in priority to these conditions.
2.2 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. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Nothing in this condition shall exclude or limit the Company’s liability for fraudulent misrepresentation.
2.3 Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions. No order placed by the Buyer shall be deemed to be accepted by the Company until a written sales acknowledgement of the order is issued by the Company.
3.1 Unless otherwise agreed in writing, the Company shall deliver the Goods to the Buyer’s address as stated in the Quotation.
3.2 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 shall be within a reasonable time.
3.3 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.
4.1 Unless otherwise agreed in writing, The Goods are at the risk of the Buyer from the time of delivery.
4.2 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 the Goods and all other sums which are or which become due to the Company from the Buyer on any account.
4.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall:
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) 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;
(c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(d) maintain the Goods in satisfactory condition and keep them insured on the Company’s behalf for their full price
4.4 The Buyer’s right to possession of the Goods shall terminate immediately if:
(a) the Buyer enters into liquidation, fails to observe or perform any of its obligations under the Contract, or ceases to trade; or
(b) the Buyer encumbers or in any way charges any of the Goods.
4.5 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer’s right to possession has terminated, to recover them.
5.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be as set out in the Company’s Quotation.
5.2 The price for the Goods shall be exclusive of any value added tax, for which the Buyer shall be additionally liable.
6.1 Subject to condition 6.4, payment of the price for the Goods is due in pounds sterling within 60 days from the date of invoice, unless alternative terms have been given. Time for payment shall be of the essence. No payment shall be deemed to have been received until the Company has received cleared funds.
6.2 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
6.3 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
6.4 If the Buyer fails to pay the Company any sum due pursuant to the Contract, the Buyer shall be liable to pay interest to the Company on such sum from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Barclays Bank PLC, accruing on a daily basis until payment is made, whether before or after any judgment.
6.5 All Goods supplied on a Sale or Return basis must be paid for, or returned, within 3 months from the date of invoice.
6.6 The buyer will be liable for any costs incurred in the collection of unpaid accounts, including, but not limited to, the employment of collection agents, and the issue of County Court Summons, judgement and bailiff instruction.
7.1 The Company warrants that (subject to the other provisions of these conditions) on delivery, and for a period of 12 months from the date of delivery, the Goods will correspond with their specification and will be free from material defects.
7.2 The Company shall not be liable for a breach of the warranty in condition 7.1 if:
(a) the Buyer makes any further use of such Goods after giving such notice; or
(b) the defect arises because the Buyer failed to follow the Company’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
(c) the Buyer alters or repairs such Goods without the written consent of the Company.
7.3 Subject to condition 7.2, if any of the Goods do not conform with the warranty in condition 7.1 the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Company’s expense, return the Goods or the part of such Goods which is defective to the Company.
7.4 If the Company complies with condition 7.3 it shall have no further liability for a breach of the warranty in condition 7.1 in respect of such Goods.
7.5 Any Goods replaced shall belong to the Company and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the 12 month period.
8. LIMITATION OF LIABILITY
8.1 Subject to condition 3 and condition 7, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
(a) any breach of these conditions;
(b) any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
(c) any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
8.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
8.3 Nothing in these conditions excludes or limits the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for the Company to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
8.4 Subject to condition 8.2 and condition 8.3:
(a) the Company’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the contract shall be limited to the Contract price; and
(b) the Company shall not be liable to the Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
8.5 The Company 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 Company’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Company’s reasonable control.
9.1 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect.
9.2 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract.
9.3 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract.
9.4 The Company may assign the Contract or any part of it to any person, firm or company.
9.5 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.