TERMS AND CONDITIONS OF SALE
1. In these Terms and Conditions the following words or phrases bear the following meanings:-
“the Buyer” means any person, firm or Company for whom or on whose behalf the Company undertakes and business or provides any services.
“the Company” means Dortek Limited.
“the Goods” means any articles of any type or composition supplied by the Company to the Buyer or the subject of maintenance by the Company.
“the Contract” in respect of good means the agreement made between the Buyer and the Company upon the Order being placed with the Company and accepted by the and in respect of the services means the Agreement between them.
“the Contract price” means the price payable by the Buyer to the Company for the Goods or services by the Company.
“the insolvency situations” means any of the following:-
(1) If an appointment is made in respect of the Buyer or its affairs of any person which the Insolvency Act 1986 required to be qualified as an Insolvency Practitioner and in whatsoever capacity that appointment is made.
(2) If a Petition is presented against the Buyer for its winding up if a Company, or for a Bankruptcy Order if an individual.
(3) If the Buyer compounds or makes any arrangement with its creditors, or:
(4) If the Buyer otherwise suffers any actions in consequence of debt or undergoes any analogous act or proceedings under foreign law.
2. These Terms and Conditions shall be incorporated in every Contract made between the Company and the Buyer and shall not be subject to variation by the Buyer.
3. Unless otherwise agreed in writing by the Company these Terms and Conditions (which supersede any earlier sets if conditions of the Company) shall override any terms or conditions stipulated, incorporated or referred to by the Buyer whether in the Contract or in any negotiations.
4. Any quotation given is open for acceptance for a period of 30 days from the date thereof unless otherwise stated.
5. Quotations do not include cost of installation unless specifically stated.
6. (1) The Buyer shall inspect the Goods immediately upon collection or upon taking delivery and shall notify the Company within three days in writing of any matter or thing by reason whereof it alleges that the Goods are not in accordance with the Contract. If the Buyer shall fail to give such notice the Goods shall be deemed to be in accordance with the Contract in all respects and the Buyer shall be bound to accept them and to pay for the same.
6. (2) In all cases where defects or shortages are complained of the Company shall be under no liability in respect thereof unless an opportunity to inspect the Goods is supplied to the Company before any alteration or modification is made and the Buyer hereby agrees that the Company shall be given full opportunity to carry out any remedial work or rectification that may be necessary.
INSURANCE AND RISK
7. (1) Not withstanding the provisions of Condition 14 the Goods supplied to the Buyer by the Company shall be at risk of the Buyer either immediately
upon delivery to the Buyer or upon being received into custody on the Buyers behalf, whichever is the sooner and the Buyer shall thereafter keep the Company indemnified in respect of any loss or damage to the Goods howsoever arising or caused.
7. (2) When the Contract requires that the Company deliver the Goods to the Buyer the Company shall insure the Goods during transit in the United Kingdom until arrival at the Buyer’s Premises.
8. (1) The Company may at its absolute discretion decline to accept any order or to provide any services.
8. (2) The Contract or Order will not be made and hence will not be valid until the order or agreement is confirmed by the Company in writing and such confirmation shall be deemed to have been made upon posting the same to the last known address of the Buyer.
8. (3) No cancellation or variation by the Buyer of any order can in any circumstances whatsoever be accepted without the consent in writing of an authorised representative of the Company.
9. Any time or date named by the Company for delivery is given and intended as an estimate only and the Company shall not be liable to make good any damage or loss whether arising directly or indirectly out of delay in delivery.
10. (1) Where a date is specified in the Contract or has otherwise been agreed upon by the Parties the Buyer must be in a position to accept delivery on the specified date.
10. (2) If the Buyer is for any reason whatsoever unable to take delivery on the said date then the Company shall be entitled to charge a reasonable charge for storage for each day thereafter until delivery of the Goods are taken by the Buyer and such Charge shall be payable and enforceable in the same manner as the Contract Price.
11. (1) The Buyer shall be responsible for safe unloading of Goods upon delivery and if not installed on day of delivery should provide safe storage for same in dry clean and suitable premises.
11. (2) The Buyer shall at its own cost provide able men and equipment to assist the Company in the installation of the Goods and lifting of the same into place.
11. (3) If the Company is prevented from proceeding with the work or the Company’s men have to be withdrawn and sent back to complete the work due to causes beyond the Company’s control charge will be made to the Buyer to cover any additional expense incurred
12. (1) The Contract price excludes VAT. The VAT shall be added to the Contract price and shall be payable by the Buyer in the same manner as the
12. (2) Payment of the Contract Price shall be made by the Buyer to the Company within 30 days of the date of invoice.
12. (3) The Contact Price is based on the cost of materials, packaging, transport, freight, insurance, labour charges, import duties and overhead expenses ruling at the date of quotation. If any increase in the cost of these items takes place at any time after 30 days after the sate of the quotation and prior to the dare of delivery or collection then the Contract Price shall be the price ruling at the day of delivery or collection.
13. (1) Interest shall accrue and be charged on all amounts remaining outstanding or any unpaid balance at the rate of three per cent annum above the base lending rate from time to time of National Westminster Bank Plc and such interest shall be calculated on a daily basis from the date upon which payment became due until the date of actual payment (both dates inclusive) and interest at the rate aforesaid shall be charged well after as before any judgement.
14. (1) Specifications including any references as to colour, drawings and similar documents and details submitted by the Company are stated in good
faith as approximately correct but minor deviations therefrom shall not be made the basis of any claim against the Company.
14. (2) In respect of any specifications submitted by the Buyer or any requirements of the Buyer minor deviations shall not form the basis of any claim
against the Company.
14. (3) Any specification or advice given by the Company is based upon information supplied by the Buyer and if the same shall be found to be
misleading or incorrect then any warranty or liability contained in these Terms and Conditions and relating to the specification or advice given
shall be immediately withdrawn and of no effect.
PASSING OF PROPERTY AND RETENTION OF TITLE
15. (1) Notwithstanding risk in the Goods passing in accordance with clause 7 hereof title in the Goods shall not pass to the Buyer until whichever shall be
the first to occur of the following:-
- (a) payment being received by the Company for the Goods and no other amounts then being outstanding from the Buyer to the Company in respect of other Goods or services supplied by the Company.
- (b) The Company waiving its rights under this Clause 15
- (1) in respect of specified Goods whereupon title to the said Goods shall forthwith vest in the Buyer.
- (2) The Buyer is licensed by the Company to use the Goods delivered to the Buyer.
- (3) Until title to the Goods passes.
- (a) The Buyer will hold the Goods as fiduciary agent and bailee for the Company;
- (b) The Goods shall be kept separate and distinct from all other property of the Buyer and of third parties and in good and substantial repair and condition and be stored in such a way as to be clearly identifiable as belonging to the Company.
- (c) The Company may at any time revoke the power use contained in clause 15(2) by notice to the Buyer if the Buyer is in default for longer than (14 days) in the payment of any sum whatsoever due to the Company (whether in respect of the Goods or any other Goods supplied at any time by it to the Buyer) (or if the Company had bona fide doubts as to the solvency of the Buyer).
- (d) The Buyer’s power of use contained in clause 15(2) shall automatically cease if the Buyer is the subject of the Insolvency Situations;
- (e) Upon determination of the Buyer’s power of use pursuant to clause 15(3)(c) or clause 15(3)(d) the Buyer shall place any of the Goods in its possession or under its control and unsold at the disposal of the Company and the Company shall be entitled to enter upon any premises of the Buyer for the purpose of removing or immobilising such Goods as the Company may in its absolute discretion see fit.
- (4) The Company shall at any time be entitled to appropriate any payment made by the Buyer in respect of any Goods in settlement of such invoices or accounts in respect of such Goods or services as the Company may in its absolute discretion think fit notwithstanding any purported appropriation to the contrary by the Buyer.
16. (1) The Company will replace repair or refund the appropriate sun to the Buyer (at its sole discretion) in respect of any Goods supplied by it which are notified to it as being in any way defective due to faulty workmanship or materials during the period of 12 months from the date of delivery provided that the defect is notified to the Company within 7 days of the discovery of the same
16. (2) This guarantee will be inoperative if any of the following apply:-
- (a) if the Buyer has failed to comply with his obligations hereunder;
- (b) if the Goods have been repaired or altered in any way by anyone other than the Company;
- (c) If the problem has arisen through misleading or incorrect information supplied by the Buyer.
- (d) if the Goods have been subject to abnormal wear or tear.
17. The Company shall not be liable for any consequential or indirect loss suffered by the Buyer whether this loss arises from breach of a duty in Contract or tort or in any other way (including loss arising from the Company’s negligence). Non-exhaustive illustrations of consequential or indirect loss would be
– loss of profits
– loss of Contracts
– damage to property of the Buyer or anyone else, and
– personal injury to the Buyer or anyone else (except so far as such injury is attributable to the Company’s negligence)
18. Subject to clause 14(3) hereof the Company’s total liability for any one claim or for the total of all claims arising from any one act or default of the Company (whether arising from the Company’s negligence or otherwise) shall not exceed the Contract price whichever is the greater.
19. If the Buyer shall make default in or commit any breach of any of his obligations to the Company or if any distress or execution shall be levied upon the Buyer, its property or assets or if any of the Insolvency Situations shall arise the Company shall have the right forthwith to determine any order then subsisting or to discontinue any services and upon written notice of such determination being posted by the Company to the Buyer’s last known address any subsisting order shall be deemed to have been determined without prejudice to any claim or right the Company might otherwise make or exercise.
RIGHT TO SUB-CONTRACT
20. The Company shall be entitled to sub-Contract the whole or part of the Contract (including any installation) whether for the supply of Goods or services.
21. No servant or agent or sub-Contractor of the Company performing the whole or any part of the Contract shall in any circumstances whatsoever be under any liability whatsoever to the Buyer or to the Buyer’s principle for any loss, damage or delay of whatsoever kind arising or resulting directly or indirectly from any act, neglect or default on his part while acting in the course of or in connection with his employment and every exemption, limitation and condition contained in these Terms and Conditions to which the Company is entitled hereunder is applicable to the servant, agent or sub-Contractor and shall also be available to and shall extend to protect every such servant, agent or sub-Contractor as aforesaid and for the purposes of this Condition the Company shall be deemed to be acting as agent on behalf of and for the benefit of all persons who are or may be the Company’s servant, agent or sub-Contractor from time to time and all such persons shall to this extent be or be deemed to be parties to the Contract.
22. If the Contract shall become impossible of performance or otherwise frustrated by reason of war, invasion, act of foreign enemy, hostilities, (whether war be declared or not), civil war, rebellion, revolution or civil strife consequent upon any of the said events the Company shall be relived of liabilities incurred under the Contract wherever and to the extent to which the fulfilment of such obligations is prevented, frustrated or impeded as a consequence of any such event or by any statutes, rules, regulations, orders or requisitions issued by any Government department Council or other duly constituted authority or from strikes, lock-outs, breakdown of plant or any other causes (whether or not of a like nature) beyond the control of the Company.
23. In case any stipulation contained in these Terms and Conditions shall be in conflict with any other stipulation herein contained the Company shall be entitled to the benefit of that stipulation which is most favourable to the Company any rule of law to the contrary notwithstanding.
24. These Conditions and the Contract shall in all respects be subject to and construed in accordance with English law.