STANDARD TERMS & CONDITIONS OF SALE
1. Definitions & Interpretation
1.1. In these Conditions:
“the Seller” means Wickens Engineering Limited;
“the Buyer” means the other party to this agreement;
“Goods” means all those tangible items of property supplied by the Seller to the Buyer whether supplied with a service or not;
“INCOTERMS” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made;
“Working days” are to be construed as any day other than Saturdays, Sundays or an official public holiday in England.
1.2. Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3. The headings in these Conditions are for convenience only and shall not affect their interpretation.
1.4. Writing shall include telex, cable, electronic communication, facsimile transmission and comparable means of communication.
1.5. A number of words are used in these Conditions which have special meanings. Where this is the case the relevant words as defined begin with a capital letter.
2. Basis of the Agreement
2.1. These Conditions shall govern each contract for sale by the Seller of Goods to the Buyer to the exclusion of any other terms subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, and each agreement for the purchase of any Goods shall be a separate and independent contract between the parties.
2.2. The Seller shall sell the Goods:
2.2.1. in accordance with the Seller’s Written quotation (if accepted by the Buyer); or
2.2.2. in accordance with the Buyer’s Written order (if accepted by the Seller), subject in either case to these Conditions.
2.3. The Buyer shall have been deemed to accept these Conditions when either:
2.3.1. having received the Seller’s Written quotation, the Buyer provides a purchase order for the Goods (or other confirmation in Writing); or
2.3.2. where the Buyer’s Written order is approved by the Seller, when the Seller confirms in writing that it will supply the ordered Goods.
2.4. At the moment of acceptance under this clause, a contract for the sale of Goods subject to these Conditions will become binding on the parties.
2.5. All other terms conditions and warranties whether express or implied, statutory or otherwise, are excluded save to the extent that the same appear in these Conditions or are specifically agreed in writing by the duly authorised representatives of both parties and no variation of an agreement made under these conditions shall be binding unless expressly agreed and evidenced in Writing by authorised representatives of the Buyer and the Seller.
2.6. Orders are accepted on the understanding that the Buyer will promptly provide the Seller with sufficient information to proceed with the provision of the Goods without which the Seller is at liberty to suspend work upon or cancel the order.
2.7. Any order must be accompanied by such information, drawings and patterns as are stipulated in the Seller’s quotation and all such other information as may be required to enable the Seller to proceed with the Buyer’s order forthwith.
2.8. Any advice or recommendation given by the Seller, its servants or agents, to the Buyer or its servants or agents as to the storage, application or use of the Goods and 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.
2.9. In the event that the Buyer first receives these Conditions after the date of the Buyer’s order but prior to delivery of the Goods, the Buyer shall be deemed to have accepted the Conditions if it raises no objection within five days of notification thereof or accepts Goods delivered pursuant to an order which has been confirmed by the Seller subject to these Conditions.
3. Cancellation and provision of Buyer’s Information
3.1. The Seller reserves the right to refuse to accept any cancellation or purported cancellation and in particular no cancellation will be accepted of orders for Goods to special requirements or not normally stocked or sold by the Seller or if the manufacture or obtaining by the Seller of such Goods is in the process of being completed.
3.2. In the event of the Seller agreeing to any cancellation, suspension or variation of an agreement, the Seller reserves the right to make a cancellation charge calculated by the Seller based on the costs of the Seller which cannot be recovered together with a handling or restocking charge.
3.3. Any extra cost incurred by the Seller owing to suspension of work on the Buyer’s instructions or by reason of lack of instruction or mistaken instructions, variations or interruptions, overtime or unusual hours for which the Seller is not responsible, shall be added to the Price and paid for accordingly.
3.4. If information, drawings and patterns as are necessary for the Goods to be manufactured or assembled to the Buyer’s order are not provided to the Seller within a reasonable period, the Seller may (at its discretion) cancel the agreement or claim a suitable extension of any time for delivery and charge the Buyer any additional costs arising from such an extension.
4. Prices & Quotations
4.1. An agreement may be made on the basis of the Seller’s quotations only during the period stated thereon and if no period is stated than no later than one calendar month after the date of the quotation
4.2. All prices will be quoted in Sterling unless otherwise specified. Transport or packaging costs are included in quoted prices unless the Seller expressly states otherwise in the quotation.
4.3. All returnable containers and pallets will be chargeable and will be credited in full if returned to the Seller’s supplying location carriage paid and in good condition within thirty days of despatch thereof.
4.4. All prices quoted are exclusive of VAT.
5. Terms of Payment
5.1. All payments due under the Agreement shall become due and owing when the contract for sale is made between the parties unless otherwise agreed in writing by the Seller.
5.2. Where a credit account is agreed between the Seller and the Buyer, any payments on such credit accounts shall be strictly due on the 30th day of the month following the month in which the Goods were delivered. The Seller reserves the right however to make acceptance of any other order subject to payment in full on or before delivery of the Goods.
5.3. Overdue accounts shall bear interest at the rate of 2% per month or part of a month that payment is overdue from the date the invoice is payable.
6.1. Any stipulated or quoted period for delivery shall be calculated from the date of the agreement. Whilst the Seller will make every effort to observe the Buyer’s delivery requirements, any stipulated or quoted dates or periods for delivery are estimates only and the Seller shall incur no liability whatsoever for failure to observe them.
6.2. In the event that any delivery dates are expressed to be binding, those dates shall in any event be extended by such period as the Seller confirms to be necessary to reflect unavoidable delays in delivery due to the Buyer failing to supply information or materials required by the Seller or any change of specification required by the Buyer or any other cause beyond the Seller’s control.
6.3. The Buyer shall indemnify the Seller for all storage and other costs incurred by the Seller as a result of the Buyer’s failure to accept delivery of the Goods if delivered at the Buyer’s premises during normal business hours or at a time previously agreed by the Buyer.
7. Delivery & Returns
7.1. Delivery shall take place when the Goods arrive at the destination identified by the Seller for delivery.
7.2. The Seller will not accept liability for non-delivery of Goods unless it is notified in writing within two working days of the date of delivery.
7.3. The Buyer shall inspect the Goods immediately on delivery. Any shortages, breakage or defective Goods must be reported in writing to the Seller within two working days of delivery. If the Buyer does not give notice within such period the Goods shall be conclusively presumed to have been accepted by the Buyer.
7.4. If the Seller accepts the Buyer’s claim under Clause 7.3 above it shall be bound to repair or replace the Goods or at its option to allow the Buyer credit in respect of the Goods the subject of the claim. The Seller shall not be liable for any further claims for direct, indirect or consequential damage or loss and its sole obligation shall be the making of such repair or replacement or giving of credit as aforesaid.
7.5. If the Buyer fails to take or accept delivery of Goods at the time specified by the Buyer, the price shall nevertheless be paid in accordance with condition 5 as if delivery had taken place. Any additional costs incurred by the Seller, whether in transportation charges, for storage or otherwise, shall be payable in addition to the price.
8. Title & Risk
8.1. Notwithstanding that the risk in the Goods shall pass to the Buyer on delivery, full legal and equitable title and interest in all and any Goods supplied to the Buyer shall remain in the Seller and shall not pass to the Buyer until the Seller shall have received payment in full of all amounts due and owing from the Buyer to the Seller for the time being including any interest accruing and owing to the Seller and from time to time in respect of all such Goods and all other Goods supplied by the Seller to the Buyer at any time.
8.2. During such time as title in the Goods remains in the Seller the Buyer shall store or otherwise keep the Goods in such a way as clearly to indicate at all times that the Goods are owned by the Seller and shall not remove, obscure or delete any mark placed on the Goods by the Seller which may enable the Goods to be identified.
8.3. If, during such time as title in the Goods remains in the Seller, any of the Goods are incorporated in or attached to or used as material for or in the manufacture of other Goods, the property in the whole of the Goods shall vest in and remain with the Seller and the Buyer shall hold such Goods as bailee of and to the order of the Seller until the Seller has received payment in full in respect of the Goods and all the Sellers rights in relation to the product (including its rights under this Agreement) shall extend to such Goods.
8.4. Whilst title remains in the Seller, the Buyer shall have power to deal with or use the Goods and other Goods in which the Goods are incorporated as fiduciary bailee of the Seller in the normal course of its business.
8.5. Upon any such sale by the Buyer of the Goods, or Goods incorporating the Goods, all rights which the Buyer may have against the purchaser of them shall automatically vest in the Seller. The Buyer shall indemnify and keep indemnified the Seller in respect of any proceedings, actions or claim of any nature whatever made or brought by the said purchaser against the Seller in respect of the Goods or any of them.
8.6. Without prejudice to any other rights or remedies arising out of any breach of contract by the Buyer, the Seller shall be entitled to repossess all or any of the Goods and to take possession of all or any of the Goods incorporating such Goods upon the happening of any the events specified in these Conditions.
8.7. For the purpose of any repossession allowed under this agreement, the Seller or its agent shall be entitled to enter upon any relevant land or buildings with such transport as may be necessary. All costs incurred by the Seller or its agent in such repossession shall be borne by the Buyer.
8.8. The risk in all Goods supplied under this Agreement shall remain with the Seller during transportation to the Buyer’s place of Business. Notwithstanding that the title in the Goods may not have passed in accordance with the provisions of this clause, the risk in all Goods shall pass to the Buyer upon delivery of the item concerned to the Buyer’s place of business or as directed and agreed. The Buyer shall at its own expense take out and secure the continuance of an all-risk insurance policy in respect of the Goods supplied in accordance with this agreement to their total value at replacement cost. Such policy cover the Goods from and including the date on which they are delivered to the Buyer’s place of business or as directed and agreed.
8.9. The Buyer warrants that it is not at the time of entering into this agreement insolvent and knows of no circumstance which would entitle any creditor to appoint a receiver or to petition for winding up or to exercise any other rights over or against its assets.
9.1. The Seller warrants that the Goods will be of satisfactory quality and that should any failure of the Goods occur within 12 months, or such other period as shall be agreed in writing between the Seller and the Buyer from the date of delivery, which is proved (to the Seller’s satisfaction) to be the result of defective material or workmanship and not caused by fair wear and tear, damage in transit or accident, the Seller (subject to condition 9.2 below) will supply replacement Goods or, where appropriate a new part, free of charge and carriage paid and forward this to the Buyer.
9.2. In every case the warranties given in these Conditions shall not be assignable without the written consent of the Seller.
9.3. For the purposes of 9.1, ‘satisfactory quality’ shall not be deemed to include freedom from minor defects in finish or appearance.
9.4. The Seller does not warrant (and therefore shall not be liable for) the following: –
9.4.1. defects or failure which are not reported to the Seller within one calendar month of the occurrence of failure; or
9.4.2. any failure or damage due to the Goods being misused or neglected or used in excess of their rated capacity or under conditions detrimental to their proper use or likely to cause excessive wear or tear;
9.4.3. Goods which have been modified or re-worked by the Buyer or any third party or otherwise than in accordance with the Seller’s written or verbal instructions.
10. Export Sales
10.1. It is hereby agreed between the parties that the uniform law on international sales shall not apply to any contract pursuant to these Conditions.
10.2. Where Goods are to be supplied for export from the United Kingdom these Conditions shall apply subject to the following:
10.2.1. the terms concerning payment, delivery, risk, insurance and carriage of the Goods shall be specified in the Seller’s written quotation;
10.2.2. the terminology of the Seller’s written quotation shall be defined by reference to Incoterms 2000.
Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to the Seller at its registered office marked for the attention of the Directors and to the Buyer at its registered office or principal place of business or such other address as may at the relevant time have been notified by the Buyer pursuant to this provision.
12. Tests, Inspection & Performance
12.1. The Seller’s manufactured Goods are carefully inspected and, where practicable, submitted to the Seller’s standard tests before dispatch.
12.2. If physical tests on materials, or running tests, in the presence of the Buyer’s representative(s), are required, unless otherwise agreed, these will be charged extra, and in the event of any delay on the Buyer’s part in attending such tests after seven days written notice that the Seller is ready, these tests will proceed in the Buyer’s absence and shall be recognised by the Buyer.
12.3. Any performance figures for any of the Goods given by the Seller are based on their experience and are such as they would expect to obtain on test. The Seller will not however, unless otherwise agreed, accept any liability if those figures are not obtained. The Buyer will assume responsibility for the capacity and performance of the Goods being sufficient and suitable for their purposes.
12.4. Unless otherwise agreed all Goods will be produced to the Seller’s appropriate standard specification and finish.
13. Goods to the Customer’s Specification
13.1. Where the Seller supplies Goods to a Buyer or carries out work for a Buyer in accordance with the Buyer’s specifications, any addition or alteration may be subject to an extra charge.
13.2. The Seller shall not be liable for any loss, damage or delay occasioned directly or indirectly by any error, omission or lack of precision in any description or information supplied by or on behalf of the Buyer to the Seller in respect of any Goods sold or to be sold by the Seller to any party.
Where Goods are delivered by instalments each delivery shall be deemed to constitute a separate enforceable contract.
15. Third Party Rights
15.1. The Seller does not warrant nor shall it be an implied term of any order, that the Seller’s Goods do not infringe the rights of any third party.
15.2. The effects of the Contracts (Rights of Third Parties) Act 1999 are hereby excluded.
Save as provided in these Conditions, the liability of the Seller for loss or damage including consequential or indirect loss or damage to the Buyer shall not in any event exceed a sum equivalent to the Agreement price whether such liability arises in contract or in tort or otherwise but this limitation of liability shall not apply in respect of the death or personal injury of any person resulting from the negligence of the Seller its servants or agents or the Seller’s implied undertaking as to title.
17. Intellectual Property
In order to protect the Seller’s Intellectual Property rights in connection with the Goods (other than proprietary goods) the Buyer by accepting these conditions hereby undertakes not without the Seller’s prior written consent to use any of the Goods except in connection with the order and in particular, not to sell the Goods or any part thereof except to the Seller, or as they may direct.
The Buyer shall not apply for any Letters Patent, Registered Design or similar rights or protection in relation to the Goods or said items unless specifically agreed by the Seller in writing.
18.1. This agreement may be cancelled at any time by the mutual agreement of both parties or, in the case of a series of agreements for delivery of Goods, the aggregate duration of which exceeds one calendar month, then by either party giving the other not less than 3 months notice in writing.
18.2. The following shall be treated as a breach of the terms of the Agreement and the Seller shall be entitled without prejudice to its other rights and remedies to treat such breach as a repudiation of this agreement and to determine the same accordingly:
18.2.1. any failure of the Buyer to take delivery of the Goods when required to do so or any failure of the Buyer to remedy any breach of its obligations under any agreement with the Seller within thirty days of written notice from the Seller specifying the breach and the remedial action required;
18.2.2. the levying of any distress, execution or other legal process upon any of the Buyer’s assets;
18.2.3. any arrangements or composition between the Buyer and its creditors or any act of bankruptcy of the Buyer or the passing of a resolution or the making of any order for the winding up of the company or the making of any administration order in respect of the company or the appointment of any liquidator, administrative receiver, judicial administrator, receiver or manager in respect of any parts of the undertaking or assets of the Buyer or any subsidiary or holding company of the Buyer.
18.2.4. In the event of Force Majeure (within the meaning of clause 19) if provisions are not made in a reasonable time and manner.
18.3. Any failure on the part of the Seller to terminate this agreement or to take action for enforcement of this agreement in consequence of any breach by the Buyer shall not operate as a continuing waiver of the breach in question or prevent the Seller from subsequently enforcing its rights in respect of any continuing or like breach.
19. Force Majeure
19.1. If in consequence of any circumstances of Force Majeure, including without limitation, war, civil commotion or disturbance, labour unrest, shortage of manpower, fire, flood, shortage of fuel, power or raw materials, demands, restriction or requests of Government or similar authorities, non-delivery or delay of supplies and all other circumstance of whatever kind which are beyond the Seller’s reasonable control and which may affect the Seller’s ability to fulfill their delivery obligations or if delivery of the Goods or completion of the contract is prevented, impeded or delayed, the Seller shall be absolved from all responsibility and liability whatsoever and reserve the right at the Seller’s own option wholly or partly to cancel the agreement or to postpone the delivery by such period beyond the time of delivery stated as is appropriate in the circumstances.
19.2. Any cancellation by the Seller shall be without prejudice to their rights to recover all sums due in respect of deliveries made prior to cancellation.
20.1. The Buyer hereby undertakes to:
20.1.1. keep confidential all information (written or oral) concerning the business and affairs of the Seller that it shall have obtained or received as a result of the discussions leading up or the entering into or performance of this Agreement (“the Information”);
20.1.2. not without the written consent of the Seller to disclose the Information in whole or part to any person save those of the Buyer’s employees involved in the implementation of the Goods (which are the subject matter of this agreement) and who have a need to know the same; and
20.1.3. to use the Information solely in connection with the implementation of the Goods.
20.2. The provisions above shall not apply to the whole or any part of the information to the extent that it is:
20.2.1. trivial or obvious;
20.2.2. already in Buyer’s possession other than as a result of breach of this clause; or
20.2.3. in the public domain.
If any provision of these conditions are held by any competent authority to be invalid or unenforceable in whole or part the validity of the other provisions of these conditions and the remainder of the provisions in question shall not be affected thereby.
The Buyer, will not without the prior written consent of the Seller, assign any benefit under this agreement. Such consent may be given by the Seller on such terms as to guarantee or indemnity or otherwise as the Seller thinks fit.
Every Agreement to which these conditions apply shall be construed and take affect in accordance with the Laws of England and the parties shall accept the non-exclusive jurisdiction of the English Courts.