Conditions of Sale
In these Conditions "the Company” shall mean Barclay & Mathieson Ltd. and/or any subsidiary company and "the Buyer" shall mean any person, firm, company or other organisation placing an order with the Company. The titles of these conditions are not part of them and are for convenience of reference only.
2. APPLICATION & VARIATION OF CONDITIONS
These Conditions shall be incorporated in all contracts for the sale of goods by the Company and any provision of the Buyer's order which is inconsistent with them shall be of no effect. These conditions cannot be varied without the prior written agreement of the Company stating the variation and referring expressly to the condition which is to be varied.
3. DELIVERY DATES
Dates or periods quoted for delivery are approximate, given for information only and time shall not be of the essence in relation to them. Failure by the Company to comply with any such dates or periods shall not constitute a breach of contract and shall not entitle the Buyer to treat the contract as terminated or to any other remedy against the Company.
4. FORCE MAJEURE
Notwithstanding any variation of Condition 3 in accordance with Condition 2, the Company shall not be liable for delay in delivery or failure to make delivery of any goods due to force majeure, including but without prejudice to the generality of the foregoing war, rebellion, revolution, strikes, lockouts, breakdown of plant or governmental or other regulations, rules, laws or decrees. The Company will take the measures it deems appropriate to guard against the consequences of such force majeure.
Unless fixed prices have been expressly agreed by the Company the price payable by the buyer shall be the company's price prevailing at the date of despatch of each delivery. Prices may be subject to a delivery charge and to charges for test certificates where appropriate and are subject to the addition of V.A.T.
Irrespective of prices being fixed or variable, the Company reserves the right to add surcharges such as for alloy or scrap content or any other factor as imposed by the producer of the goods, and with immediate effect whenever such a charge is made.
Payment is due by the end of the month following the month of despatch. The Company shall be entitled to charge interest on any sums not so paid. Such interest shall be calculated on a day-to-day basis on the amount outstanding from the due date of payment at a rate of 3% in excess of the highest rate at which The Bank of Scotland base lending rate stood at any time within which the debt remained unpaid. The Buyer shall not be entitled to withhold payment of any sums due to the Company by reason of any disputed claim of the Buyer for defective goods or alleged breach of the contract by the Company. The Company reserves the right to require payment on the basis of cash with order.
Where the goods are packed or protected as specified in the contract or in the event of no such specification the goods are delivered without any or sufficient packing or protection the Company shall not be liable for any deterioration or damage suffered by the goods during carriage or delivery.
a) In the U.K. - In all cases the Buyer warrants that in cases where delivery is to be made by Road Transport sufficient and suitable access to the said destination including a road surface capable of withstanding the weight and size of the transport and loads involved is available. In the event of any additional costs or expense being incurred by the Company due to any breach of such warranty the Buyer shall reimburse the Company the full amount thereof on demand.
b) Outside the U.K. the delivery shall be F.O.B. to such U.K. point of departure as is mentioned in the Buyer's order unless otherwise agreed in writing.
c) If the Buyer refuses to accept delivery of any consignment of the goods during the time agreed for delivery without valid reason the Company has the right to make an additional charge to cover the extra cost caused by the refusal.
The Buyer shall be deemed to have accepted the goods and it shall be conclusively agreed that the goods are in accordance with the contract unless:
a) within 48 hours after receipt of the goods and prior to their use or resale the Buyer serves on the Company a written notice specifying the alleged defect in the quality or state of the goods which would be apparent upon careful inspection or by such testing as it is reasonable in all the circumstances for the Buyer to undertake and thereafter provides the Company with a reasonable opportunity of inspecting or testing the goods before they are used or resold.
b) if the alleged defect in the quality or state of the goods would not be apparent upon careful inspection or reasonable testing the Buyer serves on the Company written notice of such defect forthwith upon its discovery and in any event not more than 4 months after receipt of the goods specifying the matters complained of and affording the Company a reasonable opportunity of inspecting the goods before any making good or replacement is undertaken.
11. DEFECTIVE GOODS
a) Provided that the Buyer has complied with Condition 10, if the goods or any part thereof are defective in quality or state or (except for any discrepancy in weight or quantity) otherwise not in accordance with the Contract then if the Company and the Buyer do not agree that the Buyer shall accept the goods at an agreed value or that the goods should be made good at the Company's expense the Company will accept the return of the goods by the Buyer and at the Buyer's option either:
(i) repay or allow the Buyer the invoice price thereof and any reasonable costs incurred by the Buyer for the purpose of transporting the goods back to the Company; or
(ii) replace the goods by delivering replacement goods as soon as reasonably practicable and in all other respects in accordance with the Contract.
b) The obligations of the Company under Section (a) of this Condition are in substitution for any other legal remedy of the Buyer and the liability of the Company shall for all purposes be limited to the cost of making good, the giving of any appropriate credit or repayment or the replacement of the goods in accordance with that Section. Under no circumstances shall the Company be liable for any other loss damage or expense occasioned by any breach of contract negligence or breach of any duty of the Company whatsoever and howsoever such loss or damage or expense may have been caused. The Company shall not be liable for any loss or damage the Buyer may suffer by reason of its use or sale of the goods after the Buyer has become aware of a defect therein or ought in all circumstances to have become so aware.
c) Where processing of the goods has been carried out by a third party, the Company's liability is limited to the processor's warranty as to the process or the effect the process may have had on the goods themselves.
d) In no circumstances will the Company be responsible for loss or damage beyond that expressly referred to in this clause (other than non-excludable liability for death or personal injury resulting from negligence on the part of the Company) and in particular liability for any form of consequential loss is excluded.
The goods will be supplied within the tolerances stated in the current British Standard/European Standard for the appropriate product, where such a standard exists, unless it has been expressly agreed otherwise, in writing, by the Buyer. Any condition warranty or undertaking as to the fitness or suitability of the goods for any purpose known by the Company or which may be implied by custom of the trade or by statute or otherwise are hereby excluded and any statement in a British or European Standard as to suitability of the goods for any purpose shall give rise to no legal liability on the part of the Company.
The risk in the goods but not the ownership shall pass to the Buyer upon delivery. Delivery shall be deemed to take place:
a) in the case of goods to be collected from the Company's premises by the Buyer or by the Buyer's agent (including any independent carrier engaged by the Buyer) — at the time when the loading of the goods on to the vehicle collecting them is completed;
b) when goods are delivered by the Company's transport (including any independent carrier engaged by the Company) - at the moment the goods are lifted from the delivery vehicle.
14. RETENTION OF TITLE AND REPOSSESSION
Property in the goods shall remain with the Seller until the price thereof and all other sums otherwise due by the Buyer to the Seller are paid to the Seller in full. Until property in the goods has passed to the Buyer (and without prejudice to its other rights) the Company and its employees and agents (with such plant and vehicles as the Company considers necessary) shall be entitled to enter any premises where the goods are located to inspect the goods and if any of the events specified in paragraphs (a), (b), (c) or (d) of Condition 17 has occurred without prior notice to the Buyer to re-possess, take away and re-sell the goods.
Claims for non delivery, discrepancy in weight or damage must be notified within seven days of the date of despatch. All goods are sold on the basis of weighed weight or calculated weight or quantity according to the Company's practice for that product. Sizes are supplied within the rolling tolerances as laid down by the producers. Where weighed weight is chargeable, the count is not guaranteed and claims based solely upon count cannot be accepted. The Company shall be deemed to have fulfilled the contract if the goods delivered are within a tolerance of 10 per cent above or below the quantity ordered.
Orders cannot be cancelled except with the Company's consent and on terms which will indemnify the Company against loss and expenses incurred. Any goods returned without the Company's consent will not be accepted for credit.
The Company shall be entitled, without prejudice to its other rights and remedies, either to terminate wholly or in part any or every contract between itself and the Buyer or to suspend any further deliveries under any or every such contract in any of the following events:
a) Any diligence or other legal process being levied upon any of the Buyer's assets.
b) If any debt is due and payable by the Buyer to the Company but is unpaid;
c) If the buyer has failed to take delivery of any goods under any contract between it and the Company otherwise than in accordance with the Buyer's contractual rights;
d) If the Buyer becomes insolvent or enters into any composition or arrangement (including a voluntary arrangement) with his creditors or being a body corporate has passed a resolution for voluntary winding-up except where solely for the purpose of amalgamation or reconstruction or if a petition has been presented for an order for its winding-up or for a receiver (including an administrative receiver) or administrator to be appointed or if any such order or appointment is made or if being an individual or partnership the Buyer suspends payment of his or their debts in whole or in part or if an application has been made for an interim order or a petition has been presented for a bankruptcy order or if any such order is made or if the Buyer whether or not a body corporate shall carry out or be subject to any analogous act or proceedings under foreign law. In the event of a termination by the Company of the contract in accordance with sections (a), (b), (c) or (d) above or any cancellation and/or repudiation of the contract by the Buyer the Company shall be entitled to recover as damages from the Buyer the following:
(i) The value including any work completed or goods manufactured at the date of termination.
(ii) The value of any work begun or goods begun to be manufactured but not completed at the date of termination including the cost of materials, labour, overheads and profit in connection therewith.
(iii) A sum representing any further profit which the Company would have made on the contract but for its termination such profit to be determined by the Company's Auditors whose decision shall be conclusive and binding on the Buyer.
The rights of the Company and the Buyer shall not be prejudiced or restricted by any indulgence or forbearance extended by either party to the other and no waiver by either party in respect of any breach shall operate as a waiver in respect of any subsequent breach.
The contract shall not be assigned by the Buyer to any third party without the prior written consent of the Company.
a) The Buyer shall be solely responsible for the accuracy of any drawings, specifications or other information supplied to the Company by the Buyer, its employees or agents and in conformity with which the Company is to supply the goods or is to apply any process or service in relation to goods of the Buyer notwithstanding that the Company may have examined, inspected, studied or commented to the Buyer upon any such drawings, specifications or other information.
b) The Buyer shall indemnify the Company against all actions, proceedings, claims, costs and expenses which may be brought against or incurred by the Company by reason of its supplying the goods or applying any process or service in relation to goods of the Buyer in accordance with any such drawings, specifications or other information whether or not it is alleged in such actions, proceedings and claims that any patent, trademark, design, copyright or other intellectual property or other exclusive right of any third party has been infringed.
21. BUYER'S ACKNOWLEDGEMENT AND UNDERTAKING
The Buyer acknowledges having been supplied by the Company with all necessary information concerning any possible danger to health or safety of the Buyer's employees at work emanating from or associated with the goods supplied in this contract and undertakes to ensure as regards the use to which the goods are made at the Buyer's place of work that the provisions of the Health and Safety at Work Act 1974 and in particular the provisions of Section 6 thereof shall be fully complied with and agreed to indemnify and keep indemnified the Company in respect of any claim or costs which the Company may have to meet arising directly or indirectly out of the supply of the goods forming part of this contract to the Buyer and due to the Buyer's failure to properly comply with the terms of this undertaking or the provisions of the said Act or any other Statutory provisions or modifications thereof.
22. LAW OF THE CONTRACT
The contract shall in all respects be governed by the Law of Scotland and shall be deemed to have been made in Scotland and the Scottish Courts shall have jurisdiction in connection therewith or in connection with any question arising hereunder. In particular it is hereby declared and agreed that the Uniform Laws on International Sales Act 1967 and any statutory modification or reenactment thereof shall not apply to the Contract of which the foregoing are conditions.
Any notice authorised or required to be given pursuant to these Conditions shall in the case of a notice to the Company be sent to it at its registered office and shall in the case of a notice to the Buyer be sent to the Buyer at its registered office if the Buyer is a company and in any other case to the address of the Buyer last known to the Company. Any such notice may be given by hand, by post or by telex. To prove service in the case of a notice given by post it shall be sufficient to show that the notice was despatched by first class recorded delivery service in a correctly addressed and adequately stamped envelope and to prove service in the case of notice given by telex it shall be sufficient to show that the telex transmission was made to the correct telex number. Service shall be deemed to have been affected 24 hours after despatch by post or telex transmission.
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