SCREEN SOLUTIONS LIMITED ("THE SELLER") TERMS AND CONDITIONS OF SALE (June 2011 Revision)
"the Company" means Screen Solutions Limited
"the Purchaser" means the person, firm or company to be supplied with the goods by the Company
"Goods" means the goods, materials and/or items to be supplied and/or services to be rendered pursuant to the Contract
"the Contract" means the contract for sale and purchase of the Goods made between the Company and the Purchaser to which these Conditions apply.
These conditions apply to all sales of Goods by the Company and shall prevail over any inconsistent terms or conditions referred to in any Purchaser's order or in correspondence or elsewhere whether or not first in time unless specifically otherwise agreed in writing by a director of the Company and any conditions or stipulations to the contrary are hereby excluded or extinguished.
A quotation by the company does not constitute an offer and the Company reserves the right to withdraw or amend the same at any time prior to the Company's acceptance of any Purchaser's order placed with the Company in response to any such quotation.
Unless the prices quoted are stated to be fixed the prices payable for the Goods shall be those charged by the Company at the time of despatch so that the Company shall have the right at any time to revise quoted prices to take account of increases in costs including (without limitation) any foreign exchange fluctuation, currency regulation, alteration in duties, increase in the costs of labour, materials or other costs of manufacture, any change in delivery dates, quantities or specifications with the Goods ordered by the Purchaser, or any delay caused by any instructions from the Purchaser or failure by the Purchaser to give the Company adequate information or instructions.
Quoted prices are "ex works" and exclusive of Value Added Tax and any other duty levy or tax assessed against the Goods by any Government or other authority.
5. Terms of Payment
Subject to Condition 5.5 below payment of invoices shall, unless otherwise agreed in writing, be made in full without any deduction or set off no later than the last day of the month following dispatch of the Goods unless the Purchaser collects the Goods in which event the Company shall be entitled to invoice the Purchaser at any time after written notification that the Goods are ready for collection. Time shall be of the essence in respect of the payment of the Company's invoices.
Subject to any special terms agreed in writing between the Purchaser and a director of the Company, the Company shall be entitled to invoice the Purchaser for the price of the Goods on or at any time after delivery of the Goods.
Any extension of credit allowed to the Purchaser may be changed or withdrawn at any time by written notification from the Company to the Purchaser to take effect immediately.
The Company shall have the right to charge interest on overdue accounts at the rate of 4% above the HSBC Bank Plc base rate from time to time – subject to a minimum of 8% - to run from the due date for payment thereof until receipt by the Company of cleared funds for the full amount due whether before or after judgment.
If in the opinion of the Company the credit worthiness of the Purchaser shall have deteriorated or the Company is unable to determine the Purchaser's credit worthiness to its satisfaction prior to delivery, the Company may require full or partial payment of the price prior to delivery or the provision of security for payment by the Purchaser in a form acceptable to the Company.
In any case where the Purchaser is resident outside the United Kingdom and unless otherwise agreed the price of the gods shall be secured by an irrevocable letter of credit satisfactory to the Company established by the Purchaser in favour of the Company immediately upon receipt of the Company's Acknowledgement of Order and confirmed by a United Kingdom Bank acceptable to the Company. The letter of credit shall be for the Contract price inclusive of any tax or duty or delivery costs and all costs incurred by the Company in agreeing and establishing such letter of credit and shall be valid for the period specified by the Company. The Company shall be entitled to payment on presentation to such United Kingdom Bank of the documents specified in the letter of credit.
Time not being of the essence of the Contract other than as specified in Clause
herein delivery dates mentioned in any quotation or acceptance form or elsewhere are approximate only and not of any contractual effect. The Company shall not be under any liability to the Purchaser in respect of any delay in delivery howsoever arising. In the event of any failure to deliver any Goods the liability of the Company shall be limited to the value of such Goods referred to in the relevant invoice or as otherwise specified in the Contract. The Company will accept no liability for any indirect or consequential losses.
In the event of the Purchaser returning or failing to accept any delivery of the Goods in accordance with the Contract the Company shall be entitled at its option either to deliver and invoice the Purchaser for the balance of Goods then remaining undelivered or to suspend or cancel further deliveries under the Contract. The Company shall be entitled to store at the risk of the Purchaser any Goods which the Purchaser refuses or fails to accept and the Purchaser shall in addition to the invoice price pay all costs of such storage and any additional costs or carriage incurred as a result of such refusal or failure. The Company shall be entitled after the expiration of 3 months from the date upon which the price became payable to dispose of the Goods in such manner as the Company may determine.
Unless otherwise specified in writing by the Company delivery shall be "ex works" so that the Goods shall be deemed to have been delivered and the risk therein to have passed to the Purchaser upon the Company notifying the Purchaser that the Goods are available for collection.
In any case where the Goods are sold CIF or FOB, FCA or DAP or on the basis of any other international trade term the meaning of such terms contained in Incoterms (2010) shall apply as if expressly incorporated herein except insofar as any part of the same may be inconsistent with any of the provisions contained in these Conditions.
In the case of any sale of Goods FOB the Company shall be under no obligation to give the Purchaser the notice specified in Section 32(3) of the Sale of Goods Act 1979.
Unless otherwise expressly agreed the Company may effect delivery in one or more instalments. Where delivery is affected by instalments each instalment shall be treated as a separate contract and failure by the Company to deliver any one or more of the installments in accordance with these Conditions or any claim by the Purchaser in respect of any one or more installments shall not entitle the Purchaser to treat the Contract as a whole as repudiated.
If in the case of the Contract or any order involving more than one delivery default is made in payment on the due date the Company shall have the right to suspend all or any further deliveries pending payment or to terminate the Contract in its entirety by notice in writing to the Purchaser.
Where the Goods supplied includes installation by the Company, the following provisions apply:
Unless otherwise agreed in writing by the Company, prices quoted will assume that
The installation is to be carried out at ground floor level with adequate access for materials of the relevant size or
Adequate lifts or hoists are provided by the Customer to move efficiently the materials to the place of installation
The site is ready at the agreed time for installation to commence
The programme of works allows for the installation to be completed within normal working hours
Access to site and all required utilities are available at the times necessary to complete the installation
Should additional expense or labour be required because any of the above conditions is not met, the Company reserved the right to charge the Customer for the excess at the Company's current rates (including travel and overtime rates if appropriate)
The Company will not accept any responsibility for loss of or damage to the Goods after they have reached the site. The Goods whether or not installed shall be at the risk of and must be fully insured by the Customer against fire, theft, damage and other normal insurance risks for the full replacement costs.
It is the responsibility of the Customer to provide a safe and appropriate working environment for the Company's employees and/or contractors to carry out the installation. Without detracting from the generality of the foregoing, such provision must include adequate lighting, heating and power supplies and the protection of carpets, furniture and other vulnerable items.
Prices quoted exclude packing except where otherwise stated in writing by the Company and the following provisions shall apply where returnable pallets or cases are supplied.
i) The Purchaser shall within 21 days of delivery of Goods return all such pallets in good condition to the Company marked "carriage paid as per consignee's agreed charges" at the Purchaser's expense.
ii) After the expiry of the said period of 21 days the Company shall be entitled to invoice the Purchaser for the cost of the pallets supplied in accordance with its then current standard scale of charges.
iii) The Company shall refund to the Purchaser the full invoice price in respect of any pallet returned to it within 3 months of the date of the invoice and thereafter shall refund the full invoice price less a deduction made in accordance with the Company's then current standard scale of charges.
Cases. The Company shall charge for cases as separate items but will give the Purchaser credit for the full amount if returned carriage paid in good condition within 21 days of the date of delivery of Goods, but not otherwise.
The Goods shall remain the sole and absolute property of the Company as legal and equitable owner until such time as the Purchaser shall have paid to the Company the agreed price and any other payments due to the Company from the Purchaser have been made. The Customer shall not be able or entitled to confer whether directly or by implication title to the goods to any third party until paid in full.
Until such payment the Purchaser shall be in possession of the Goods solely as bailee for the Company and in a fiduciary capacity and the Purchaser shall store the Goods in such a way as to enable them to be identified as the property of the Company.
The Company reserves the immediate right of re-possession of any Goods to which it has retained title as aforesaid and thereafter to resell the same and for this purpose the Purchaser hereby grants an irrevocable right and licence to the Company's employees and agents to enter upon all or any of its premises with or without vehicles at any time. The right shall continue to subsist notwithstanding the termination of the contract for any reason and is without prejudice to any accrued right of the Company there under or otherwise.
The Purchaser agrees immediately upon being so requested by the Company to assign to the Company all rights and claims which the Purchaser may have against its customers arising from any permitted sub-sales of Goods until payment is made in full as aforesaid.
Until such time as the property in the Goods passes to the Purchaser the Purchaser shall be entitled to use the Goods in the ordinary course of its business but shall account to the Company for the proceeds of sale or otherwise of the Goods (whether tangible or intangible) including insurance proceeds and shall keep all such proceeds separate from any money or property of the Purchaser and third parties and in the case of tangible proceeds ensure that they are properly stored, protected and insured.
The Company shall be deemed to have fulfilled its contractual obligations in respect of any delivery though the quantity or dimensions may be up to ten per cent more or less than the quantity or dimensions specified in the Contract and in such event the Purchaser shall pay for the actual quantity delivered.
11. Specifications By The Purchaser
The Purchaser shall indemnify and keep indemnified the Company against all claims, costs, damages and expenses incurred by or for which the Company may become liable as a direct or indirect result of the carrying out of any work required to be done on or to the Goods in accordance with the requirements of specifications of the Purchaser involving any infringement or claim of infringement of any intellectual property right vested in another person, firm or company.
The Company reserves the right to make changes to the specification of the Goods which are required to conform to any applicable statutory or EC requirements or where the Goods are to be supplied to the Company's specification which do not materially affect their quality or performance.
The Company shall not be liable for any shortage in the quantity delivered unless a claim in writing shall have been received by the Company from the Purchaser within 7 days of delivery of the Goods. Where liability for any shortage is accepted by the Company, the Company's only obligation shall be to make good such shortage.
In the event of any defect or failure in the quality, nature or condition of the Goods or failure of the Goods to comply with any specification the Company shall in its sole discretion replace or repair free of charge any Goods provided that the defect or failure arises under proper use and solely by reason of faulty material or workmanship on the part of the Company and written notice is given to the Company within 1 month of delivery of the Goods after which all liability on the Company's part shall cease save that the Company my in its sole discretion make a partial refund to the Purchaser of the price of the Goods.
Unless elsewhere specifically agreed in writing the Company's aggregate liability to the Purchaser whether for negligence, breach of contract, misrepresentations or otherwise shall in no circumstances exceed the invoice cost of the defective, damaged or undelivered Goods which give rise to such liability, as determined by the net price invoiced to the Purchaser in respect of any occurrence or series of occurrences.
Subject to the foregoing all conditions, warranties or representations expressed or implied by statute common law or otherwise in relation to the Goods are hereby excluded to the fullest extent permitted by law. Furthermore, the Company shall be under no liability to the Purchaser for any loss, damage or injury direct or indirect resulting from defective material, faulty workmanship or otherwise howsoever arising out of the Contract and whether or not caused by the negligence of the Company, its servants or agents save that the Company shall accept liability for death or personal injury caused by the negligence of the Company.
13. Force Majeure
The Company shall not be liable to the Purchaser for any loss or damage which may be suffered by the Purchaser as a direct or indirect result of the supply of the Goods by the Company being prevented, hindered or delayed by reason of any force majeure circumstances.
In this Condition "force majeure circumstances" shall include any act of God, riot, strike, lock-out, trade dispute or labour disturbances, accident breakdown of plant, machinery or vehicles, fire, flood, difficulty in obtaining workmen, terrorist activity, material or transport or other circumstances whatsoever outside the control of the Company affecting the provision of the Goods or of raw materials used therein by the Company's usual source of supply or the manufacture of the Goods by the Company's normal means or the delivery of the Goods by the Company's normal route or means of delivery.
If the Purchaser enters into a deed of arrangement or commits an act of bankruptcy or compounds with his creditors or if a receiving order is made against him or (being a company) it shall pass a resolution or the Court shall make order that the Purchaser shall be wound up (otherwise than for the purpose of amalgamation or reconstruction) or if a receiver shall be appointed over any of the assets or undertaking of the Purchaser or if circumstances shall arise which entitle the Court or a creditor to appoint a receiver or manager or which entitle the Court to make winding-up order or if the Purchaser takes or suffers any similar action in consequences of debt or commits any breach of any part of this or any other contract between the Company and the Purchaser the Company may stop any Goods in transit and suspend further deliveries and by notice in writing to the Purchaser may forthwith determine the Contract without prejudice to the provisions of Condition 5.4 hereof and to any existing claim. The Company shall also be entitled to terminate the Contract if it is of the reasonable opinion that any conditions which would permit them to terminate the Contract are about to occur.
The failure on the part of either party to the Contract to exercise or enforce any rights conferred by the Contract shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
Any notice required to be given hereunder in writing shall be deemed to have been duly given if given by pre-paid first-class post addressed to the party concerned at its principal place of business or last known address.
Headings to any of these Conditions are included to facilitate reference only and shall not affect the construction hereof.
18. Governing Law
The Contract shall be governed by and construed and interpreted in accordance with the laws of England and for the purposes of settlement of any disputes arising out of or in connection with the Contract the parties hereby submit themselves to the exclusive jurisdiction of either the High Court of Justice or the Central London County Court in London.