"The Company" means Richard Austin Alloys Ltd or any of its subsidaries; "The Customer" means the person, firm or Company to be supplied with Goods by the Company; "Goods" means goods, materials and/or other items to be supplied pursuant of the contract. The "Contract" means the contract for sale and purchase of Goods to which these conditions apply which Contract be constituted by the Customer's order and the Company's acceptance thereof. No binding contract shall exist such acceptance.
These conditions shall apply to all sales of Goods by the Company and shall prevail over and apply to the exclusion of any inconsistent terms or conditions contained or referred to in the Customer's order or in correspondence or elsewhere or implied by trade customer practice or course of dealing unless specifically agreed to in writing by a properly authorised representative of the Company. Purported provisions to the contrary are hereby excluded or extinguished.
A quotation or tender 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 the Customer's order.
The Customer shall not be entitled to cancel the Contract without the prior written consent of the Company, and then only upon terms that the Customer will idemnify the Company against any loss.
A. The prices payable for Goods shall be that charged by the Company at the time of despatch of Good's from the Company's premises. The Company shall have the right at any time to revise prices to take into account of increases in costs including (without limitation) costs of any goods or materials, carriage, labour or overheads, the increase or imposition of any tax, duty or other levy and any variation in exchange rate. Unless otherwise stated prices are in pounds sterling and are exclusive of value added tax.
B. If the prices exceeds £10,000 then it is a condition precedent of the Contract that the Company's acceptance of the Customer's order must be signed on behalf of the Company by a director of the Company. In the event that the Contract in which the price exceeds £10,000 is not signed by a director the Contract shall be void and of no effect and neither party shall have any claim whatsoever against the other.
C. Any special packaging requested by the Customer shall be the subject of an additional charge to be borne by the Customer.
Any testing and/or inspection required under the Contract shall be carried out at the Company's premises or such other place or places as the Company may appoint and the result thereof shall be accepted as final and binding by both parties.
A. Delivery dates mentioned in any quotation, acceptance form or elsewhere are approximate only and are not warranted or guaranteed and the Company shall not be under any liabilityto the Customer in respect of any failure to deliver on any particular date.
B. If the Customer refuses or fails to take delivery of Goods tendered in accordance with the Contract, the Company refuses or failsto take delivery and the Customer shall in saddition pay all costs of such storage and any additional costs or carriage incurred as a result of such refusal or failure.
Refusal by the Customer to take delivery will relieve the Company from the obligation to make further deliveries without prejudice to the Company' s right to recover damage for such refusal. The Company shall be entitled after the expiration of 28 days on which the price became payable to dispose of the Goods in such manner as it may determine.
C. Subject to the provisions of paragraph (e) of this condition the Goods shall unless delivered by the Company's own transport or by a carrier on behalf of the Company be deemed to have been delivered and the risks then to have passed to the Customer upon their transfer to a carrier named by the Customer or 2 days after the Company notifies the Customer that the Goods are available for collection whichever is the earlier.
D. Where the Goods are to be delivered by the Company or by a carrier on behalf of the Company the risk therein shall pass to the Customer upon delivery to the Customer.
E. In any case where Goods are sold C.I.F or F.O.B or on the basis of any other international trade term the meaning of such term contained in INCONTERMS (1953) (1980 edition) 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.
F. Where Goods are sold F.O.B the Company shall be under no obligation to give the Customer the notice specified in Section 32(3) of the Sale of Goods Act 1979.
8. Terms of Payment
A. All prices are quoted nett. Unless expressly provided otherwise in writing by the Company payment of invoices shall be made (without any deduction or set-off) in full in cash to be received by the Company within 30 days of the date thereof. Time of payment shall be of the essence. In the event of any such payment or part thereof becoming overdue all other invoices submitted by the Company to the Customer shall immediately become due and payable. Interest shall be payable on overdue amounts at the rate of 2 per cent per month to run from the date for payment thereof until receipt by the Company of the full amount whether or not after judgement. The Company reserves the right to refuse to make further supplies including without limitation of further instalments of the Goods where the Contract provides for delivery by instalments to the Customer whilst any payment remains outstanding.
B. The Company reserves the right to re-possess any Goods in respect of which payment is overdue and thereafter to re-sell the same and for this purpose the Customer grants an irrevocable right and license to the Company's servants and agents to enter upon the Customer's premises with or without notice during normal business hours. This right shall continue to subsist nitwithstanding the termination of the Contract through the happening of any of the events specified in Condition 9 or otherwise and without prejudice to any accrued rights to the Company thereunder.
C. The Customer shall ensure the Goods in respect of which payment is overdue clearly identified, and will return such Goods in goo dcondition upon the Company's request and will meet any expenses of the Company in recovering or repairing such Goods in the event of the Customer's failure to comply with this condition.
If the Customer 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 an order that the Customer shall be wound up (otherwise than for the purpose of amalgamation or reconstruction) or if a receiver or administrator shall be appointed of any of the assets or undertaking of the Customer 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 a winding up order or if the Customer takes or suffers any similar action in consequence of a dept or commits any breach of the Contract the Company may stop any goods in transit and/or suspend further deliveries and/or by notice in writing to the Customer 8(b) hereof and to any existing claim. Nothing in this condition shall affect the rights given to the Company by sections 38-48 of the Sale of Goods Act 1979.
10. Third Party Rights:
A. The Customer shall indemnify the Company against all claims, costs, demands abd expenses incurred by or made against the Company as a director or indirect result of the carrying out of any work required to be done on or to Goods in accordance with the requirements, drawings, designs or specifications of the Customer including without prejudice to the foregoing generality any infringement or claim thereof any intellectual property right vested in any third party.
B. In any case where Goods are or are capable of becoming the subject of any industrial or intellectual property rights of a third party the Company shall be obliged to transfer to the Customer only such title as it may have to the Goods at the date of the Contract.
11. Export Sales:
Notwithstanding Condition 8(a) hereof, in the case of export sales the price of Goods shall be secured by an irrevocable letter of credit satisfactory to the Company, established by the Customer in favour of the Company immediately upon receipt of the Company's acceptance of the Customer's order and confirmed by a United Kingdom bank acceptable to the Company. A letter of credit shall be for the full price inclusive of any tax or duty payable by the Customer and the Company shall be entitled to payment in full presentation to such United Kingdom bank of the documents specified by the company on its said acceptance.
Any notice hereunder shall be in permanent legible form and shall be deemed properly addressed if addressed to the party concerned at its principal place of business or last known address.
A. The Company shall be deemed to have fulfilled its contractual obligations in respect of any delivery though the quantity may be up to ten percent more or less than the quantity specified in the Contract and in such event the Customer shall pay for the actual quantity delivered pro rata at the invoice rate.
B. All dimensions and weights stated on the Company's quotation and/or acceptance of order terms are approximate only and are subject to dimensional tolerances.
14. License and Consents:
If any license or consent of any government or other authority shall be required for the purchase of Goods by the Customer, the Customer shall obtain the same at its own expense and if necessary or so required produce evidence of the same to the Company on demand.
A. The Company shall not be liable to the Customer for:
I. Shortage in quanitity delivered unless the Customer notofies the Company of any claim for short delivery within 96 hours of receipt of Goods;
II. Damage to or loss of Goods or any part thereof in transit or non-delivery (where Goods are delivered by the Company or by a carrier or on behalf of the Company) unless the Customer shall notify the Company of any such claim within 96 hours of receipt of Goods or the scheduled date for delivery, whichever shall be the eariler;
III. Damage to or loss of Goods or any part thereof in transit or non-delivery or defects in the Goods caused by an yact, neglect or default of the Customer or any third party;
IV. Other defects in Goods unless notified to the Company within 96 hours of receipt of the Goods or where the defect would not be apparent on reasonable inspection within 1 calendar month of delivery;
V. The quality, suitability, condition or use of Goods;
VI. Special, consequential, indirect or economic loss or damage in respect of Goods howsoever arising.
VII. Fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Company's instructions or misuse or alteration or repair of the Goods without the Company' s approval.
In the event of any shortage or non-delivery and/or damage or defect in respect of which the Company accepts liability the sole obligation of the Company shall be at its option to make good any such shortage, non delivery and/or as appropriate replace or repair any Goods found to be damaged or defective undelivered Goods (determined by net price invoiced to the Customer whether by negligence, breach of contract, misrepresentation or otherwise exceed the cost of the damaged or defective undelivered Goods). The risk of accidental loss whilst the Goods are being returned will be borne by the Customer. Property in returned or replaced Goods shal vest in the Company.
B. The Company shall be under no liability if the total price for the Goods has not been paid by the due date for payment.
C. Subject to the foregoing all conditions warranties and representations expressed or implied by the statute common law or otherwise in relation to Goods are excluded and the Company shall be under no liability to the Customer for any loss, damage or injury directly or indirectly resulting from defective material, faulity workmanship or otherwise howsoever arising and whether or not caused by the negligence of the Company its employees or agents SAVE THAT nothing herein shall be deemed to exclude or restrict the Company's liability for death or personal injury caused by the negligence of the Company.
D. The Company is willing to undertake liability additional to that herein provided in exchange for a higher price. The Customer acknowledges that the price for the Goods would be higher if the exclusions and limitations in this Condition were not agreed.
A. Title in the Goods remains vested in the Company until the price for the Goods and all other monies owing by the Customer to the Company (whether or not due) have been paid in full.
B. The Customer is licensed by the Company to use or to agree to sell the Goods delivered to the Customer subject to the express condition that the entire proceeds of sale are held in trust for the Company and are not mixed with other money or paid into an overdrawn bank account and shall at all times be identifiable as the Company's money.
C. Until title to the Goods passes:
I. The Customer will hold the Goods as fiduciary agent and bailee for the Company;
II. The Customer will, subject to (III) keep the Goods seperate and istinct from all other goods whether of the Customer or of third parties and in good and substantial repair and condition and stored and marked in such a way as to be clearly identifiable as belonging to the Company;
III. The Company may by notice revoke the power of sale and use contained in 16(B) above, if the Customer is in default for longer than seven days in the payment of any sum due to the Company or in the Company has bona fida doubts as to the solvency of the Customer;
IV. The Customer's power of sale and use contained in 16(B) above shall automatically cease if the Customer suffers any of the events set out in condition 9;
V. Upon determination of the Customer's power of sale and use the Customer shall place at the Company's disposal any of the Goods in its possession under its control and hereby authories the Company to enter its premises or the premises of any third oarty to recover such goods;
VI. The Company may appropriate any payment made by the Customer in settlement of such invoices as the Company in its adsolute discretion thinks fit notwithstanding any purported appropriation to the contrary;
VII. Notwithstanding the provisions of this condition the Customer agrees that for accounting and taxation purposes the Goods will be treated as the Customer's stock from the date of delivery.
17. Force Majeure:
The Company shall not be liable to the Customer for any loss or damage which may be suffered by the Customer as a direct or indirect result of the supply of Goods by the Company being prevented, hindered, delayed or rendered uneconomic by reason of ant Force Majeure Circumstances.
In this condition "Force Majeure Circumstances" shall mean any act of God, war, riot, strike, lock out, trade dispute or labour disturbances, accident breakdown of plant or machinery, fire, flood, shortage of, or difficulty in, or increased expense, in obtaining workmen materials or transport, any provision imposed by any government or other regulatory body or other circumstances whatsoever outside the control of the Company affecting the provision of Goods or of raw materials therefore by the Company's normal source of supply or the manufacture of Goods by the Company's normal means or the delivery of Goods by the Company's normal route or means of delivery.
A. If due to Force Majeure Circumstances the Company has insufficient stock to meet all its commitments the Company may apportion available stocks between its Customers as its sole discretion.
The failure by 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.
The Contract shall in all respects be governed by the laws of England and the parties submit to the non-exclusive jurisdiction of the English courts.