Terms and Conditions for the Sale of Goods
In these Conditions, the following definitions will apply: “Business Day”: a day (other than a Saturday, Sunday or public holiday) when banks in Glasgow are open for business; “Buyer”: the company buying Goods from the Seller under a Contract; “Conditions”: the terms and conditions set out in this document, as amended from time to time; “Contract”: the contract between the Seller and the Buyer for the sale and purchase of the Goods comprising of an Order and the Conditions; “Goods”: the goods (or any part of them) set out in the Order; “Order”: the Buyer’s order for the Goods, set out in the Seller’s standard order form; “Order Acknowledgement”: means an acceptance of an Order communicated from the Seller to the Buyer; “Seller”: Interlok Divisions (Company No: SC618815): and “Specification”: any specification for the Goods, including any related plans and drawings, that is agreed (in writing) by the Buyer and the Seller.
2.1 By submitting an Order, the Buyer agrees to be bound by these Conditions. These Conditions apply to the Contract to the exclusion of any other terms that the Buyer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable Specification are complete, accurate and fit for the Buyer’s purpose.
2.3 No Order shall be binding unless confirmed by the Seller’s official Order Acknowledgement, at which point the Contract shall come into existence.
2.4 Any samples, drawings, descriptive matter or advertising produced by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.5 Any quotation issued by the Seller in relation to the Goods does not constitute an offer and is subject to withdrawal or amendment at any time prior to an Order Acknowledgement being issued in relation to the Goods. Items referred to at the time of a quotation may not be available at the time of the Order or Order Acknowledgement. Any errors within a quotation are subject to correction by the Seller at any time.
3 PRICES AND PAYMENT
3.1 The price of the Goods shall be the price set out in the Order Acknowledgement, or, if no price is quoted, the price set out in the quotation or Seller’s published price list in force as at the date of delivery or collection.
3.2 The Seller may, by written notice to the Buyer at any time before delivery or collection, increase the price of the Goods to reflect any increases in costs related to: a request by the buyer to change the order quantity, a change in the cost of raw materials or labour required to fulfil the Order, any request by the Buyer to change the delivery date or collection date, or delay caused by the Buyer’s failure to provide adequate or accurate information or instructions.
3.3 The price of the Goods excludes amounts in respect of value added tax (VAT), which the Buyer shall additionally be liable to pay to the Seller at the prevailing rate, subject to the receipt of a valid VAT invoice from the Seller.
3.4 The Seller may, at its sole discretion:
3.4.1 invoice the Buyer prior to delivery or collection, where payment for the Goods must be made in advance and prior to the date of delivery or collection, to the bank account nominated in writing by the Seller; or
3.4.2 invoice the Buyer for the Goods on or at any time after completion of delivery or collection. Subject to the Seller receiving satisfactory references, a valid VAT invoice, and if agreed in the relevant Order, payment for the Goods is to be made net monthly, not later than the end of the month following the month during which the Goods are dispatched or collected. If there is no such agreement, payment for the Goods is to be made in cash when the Goods are delivered or collected. No discounts or other deductions are to be made to the price of the Goods unless agreed by the Seller in writing.
3.5 If the Buyer fails to make any payment due to the Seller under the Contract by the due date for payment, then the Buyer shall pay interest on the overdue amount at the rate of 4% per annum above The Royal Bank of Scotland’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Buyer shall pay the interest together with the overdue amount.
3.6 The Buyer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer.
4 MANUFACTURE OF THE GOODS
4.1 Subject to the terms of this clause, the Goods are described in the Seller’s materials (as modified by any Specification agreed in writing by the Buyer and Seller) and will be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended) and fit for any purpose held out by the Supplier.
4.2 Manufacturing quantities of the Goods are subject to a tolerance of ± 10 per cent (unless otherwise agreed in writing), any surplus or shortage in the Goods will be charged or deducted from the price paid by the Buyer on a pro rata basis. This will be reflected in the invoice issued to the Buyer.
4.3 Materials of equivalent or superior quality or other substances (other than the materials quoted by the Seller) may be substituted in the Goods.
4.4 The Seller reserves the right to amend the Specification of the Goods if required by any applicable statutory or regulatory requirements.
5.1 Delivery of the Goods shall be made by either:
5.1.1 the Buyer collecting the Goods at the Seller’s premises within 5 Business Days after the Seller has notified the Buyer that the Goods are ready for collection; or,
5.1.2 if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place.
5.2 Any dates quoted for delivery of the Goods (as the case may be) are approximate only and the Seller shall not be liable for any delay in delivery of the howsoever caused. Time for delivery shall not be of the essence. Where postponement of delivery or collection of the Goods is agreed by the Seller the Buyer shall, if required by the Seller, pay all costs and expenses but any Goods shall be held at the Buyer’s risk as from the time of postponement.
5.3 The Seller shall be entitled to make delivery of the Goods by instalments and to invoice the Buyer for each instalment despatched. 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 Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
5.4 If the Seller fails to deliver the Goods for any reason other than any cause in accordance with condition 10, or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the value of the goods.
5.5 If the Buyer fails to take delivery of the Goods, fails to collect the Goods, or fails to give the Seller adequate delivery instructions at the time stated for delivery or collection then, without prejudice to any other right or remedy available to the Seller, the Seller may:-
5.5.1 store the Goods until actual delivery or collection and charge the Buyer for the reasonable costs (including insurance) of storage; and / or
5.5.2 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 of the Goods or charge the Buyer for any shortfall below the price of the Goods
5.5.3 Seller may invoice the goods and dispose of them, with any reasonable disposal costs invoiced to the Buyer.
5.6 Where damage to or loss of the Goods occurs before delivery to or collection by the Buyer, or where there is a shortfall in quantity, in accordance with clause 4.2, the Seller undertakes (subject as provided in clause 5.7) to re-supply, replace or (at its discretion) to repair free of charge any Goods so damaged or lost or otherwise not delivered or not available for collection, in which event the time for delivery or collection of the damaged, lost or undelivered Goods shall be extended for such period as the Seller shall reasonably require for such re-supply, replacement or repair.
5.7 The undertaking in clause 5.6 is conditional upon:-
5.7.1 the Buyer giving written notice of any damage or loss caused in transit or shortfalls in the quantity of the Goods to the Seller and to the carrier (if other than the Seller) within 1 working day of receipt or collection of the Goods or in the case of total loss with delivered Goods, within 5 days of receipt of the Seller’s or the carrier’s (as the case may be) delivery advice or other notification of despatch; and
5.7.2 the Buyer (if requested by the Seller and at the Seller’s cost) returning any damaged Goods to the Seller’s works within 7 days of receipt or collection.
6 RETENTION OF TITLE
6.1 Risk of damage to or loss of the Goods shall pass to the Buyer:-
6.1.1 in the case of Goods to be collected at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
6.1.2 in the case of 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.
6.2 Title in the Goods shall not pass to the Buyer until the date that the Seller has been paid in full for the Goods by the Buyer. Until the Seller has been so paid and title to Goods has passed to the Buyer, the Buyer shall: (a) store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property; (b) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods; (c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery; (d) notify the Seller immediately if any of the events listed in clause 6.3 occur; (e) give the Seller such information relating to the Goods as the Seller may require from time to time; (f) provide the Seller access to the Buyer’s premises where the Goods are stored upon reasonable request and (g) return the Goods to the Seller upon request.
6.3 If the Buyer: (a) fails to pay for the Goods on the due date; (b) commits any act of insolvency (including, without limitation, taking any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors, threatening to suspend, ceasing or threatening to cease to carry on all or a substantial part of its business); (c) if any resolution or petition to wind up the Buyer’s business shall be passed (other than for the purpose of amalgamation or reconstruction); (d) if a receiver of the Buyer’s undertakings is appointed; or (e) the Buyer’s financial position deteriorates to such an extent that in the Seller’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy, the Seller may recover possession of the Goods at any time from the Buyer and for that purpose the Seller, his servants or agents, may enter upon any land or building upon which the Goods are situated.
6.4 Until title to the Goods passes to the Buyer, the Buyer shall not pledge the Goods or allow any lien to arise thereon. However, the Buyer may sell the Goods in the ordinary course of its business (but not otherwise) and before the Seller receives payment for the Goods. Where the Buyer resells the Goods before payment is made to the Seller, title to the
Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs. In the event of any sale or other disposition of the Goods by the Buyer, the Buyer shall hold on trust for the Seller the whole of the proceeds of the sale.
7 CLAIMS AND LIABILITY
7.1 Nothing in these Conditions shall limit or exclude the Seller’s liability for: (a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (b) fraud or fraudulent misrepresentation; (c) breach of the terms implied by section 12 of the Sale of Goods Act 1979; or (d) defective products under the Consumer Protection Act 1987.
7.2 All warranties, conditions or other terms whether regarding fitness for purpose, performance, use, quality or merchantability or otherwise of the Goods, whether express or implied, by statute (including, without limitation, sections 13 to 15 of the Sale of Goods Act 1979), common law trade usage or otherwise howsoever are hereby excluded to the fullest extent permitted by law.
7.3 Subject to clause 7.1:
7.3.1 the Seller shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort/delict (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
7.3.2 the Seller’s total liability to the Buyer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 100% of the price of the Goods.
7.4 The Seller shall not be liable for any shortage or for any failure of the Goods to comply with the Buyer’s Specification or for any defect in the condition of the Goods unless a written claim is lodged with the Seller (along with sufficient evidence) and with the carrier (where relevant) within seven days of delivery or collection of the Goods. Return of Goods will not be accepted by the Seller until the Seller or its appointed representative has examined the relevant Goods and verified the basis of the Buyer’s complaint.
7.5 The Seller’s liability for shortage, failure or defect in the Goods supplied shall be limited to the cost of making good any such shortage, failure or defect. Subject to clauses 7.1 and 7.3, the Seller shall not be liable for any other loss or damage suffered by the Buyer in relation to the Goods.
7.6 The Seller shall not incur any responsibility or liability arising from any matter printed on the Goods at the instruction of the Buyer. To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Buyer, the Buyer shall indemnify the Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Seller in connection with any claim made against the Seller for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Seller’s use of the Specification.
7.7 It is the responsibility of the Buyer to satisfy itself as to the fitness of the Goods for any particular purpose and the Goods are sold without any warranty, express or implied, as to their suitability for a particular purpose or condition.
8.1 Without limiting its other rights or remedies, the Seller may terminate this Contract with immediate effect by giving written notice to the Buyer if:
8.1.1 the Buyer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of the Buyer being notified in writing to do so;
8.1.2 the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
8.1.3 the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business;
8.1.4 there is a change of control of the Buyer (within the meaning of section 1124 of the Corporation Tax Act 2010); or
8.1.5 the Buyer’s financial position deteriorates to such an extent that in the Seller’s opinion the Buyer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
8.2 Without limiting its other rights or remedies, the Seller may suspend provision of the Goods under the Contract or any other contract between the Buyer and the Seller if the Buyer becomes subject to any of the events listed in clause 8.1.1 to clause 8.1.4, or the Seller reasonably believes that the Buyer is about to become subject to any of them, or if the Buyer fails to pay any amount due under this Contract on the due date for payment.
8.3 Without limiting its other rights or remedies, the Seller may terminate the Contract with immediate effect by giving written notice to the Buyer if the Buyer fails to pay any amount due under the Contract on the due date for payment.
8.4 On termination of the Contract for any reason the Buyer shall immediately pay to the Seller all of the Seller’s outstanding unpaid invoices and interest.
8.5 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
8.6 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
8.7 If a Buyer terminates an order before completion, the Seller may invoice up to the full contract/order value (including clause 4.2) plus all origination costs plus any reasonable disposal costs.
9.1 Each party undertakes that it shall not at any time during this Contract, and for a period of two years after termination of this Contract disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group to which the other party belongs, except as permitted by clause 9.2.
9.2 Each party may disclose the other party’s confidential information:
9.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 9.2.1; and
9.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3 No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this Contract.
10 FORCE MAJEURE
The Seller shall not be in breach of any Contract nor liable for delay in performing, or failure to perform, any of its obligations under a Contract if such failure or delay results from events circumstances or events beyond its control, including (without limitation) acts of God, war, strike, lock-out, fire, flood, drought, riot, civil commotion, restriction by government or other competent authority, or owing to the Seller’s inability to procure materials or articles except at enhanced prices due to any of the foregoing causes.
11.1 If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Conditions.
11.2 The Buyer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Seller.
11.3 No one other than a party to the Contract shall have any right to enforce any of its terms.
11.4 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
11.5 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
11.6 No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.7 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12 GOVERNING LAW
The Contract shall be governed by and interpreted according to Scots law, and (unless the Seller elects otherwise at its sole discretion) shall be subject to the exclusive jurisdiction of the Scottish courts. Notwithstanding the foregoing, where the Buyer is based in England, the Contract will be governed by and interpreted according to English law and (unless the Seller elects otherwise at its sole discretion) shall be subject to the exclusive jurisdiction of the courts of England and Wales).