God didn't create metal
just to make paper clips.
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1.1“BUYER” means the person who buys or agrees to buy the Goods from the Seller;
1.2“CONDITIONS” means the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;
1.3“DELIVERY DATE” means the date specified by the Seller when the goods are to be delivered;
1.4“GOODS” means the articles which the Buyer agrees to buy from the Seller;
1.5“PRICE” means the price of the Goods excluding carriage, packing and VAT;
1.6“SELLER” means D.M. Foundries Limited of Stafford Mill, London Road, Stroud, Gloucestershire
2.1These conditions shall apply to all contracts for the sale of Goods by the Seller to the Buyer to the exclusion of all other terms and conditions, including any terms and conditions which the Buyer may purport to apply under any purchase order, confirmation, re-order or similar document whenever created or produced;
2.2All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to the Conditions;
2.3Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller;
2.4The Conditions shall apply to all contracts and dealings between the Buyer and the Seller until agreed in writing to the contrary by the Seller.
3.THE PRICE AND PAYMENT
3.1The Price shall be the Sellers quoted price:-
(a)The Price is exclusive of VAT which shall be due at the rate ruling on the date of the Selller’s invoice
(b)The price is also exclusive of carriage and packing unless otherwise expressly agreed.
3.2All quotations given by the Seller are invitations to treat and shall not be binding upon the Seller until an order in writing has been received and accepted in writing by the Seller. All quotations shall be deemed automatically withdrawn after 28 days;
3.3The price given in any quotation is subject to the following conditions in which event the Seller may adjust the price:-
(a)Due to factors beyond the reasonable control of the Seller including (without limitation) foreign exchange fluctuations, taxes and duties, industrial action and alterations in the cost of labour, materials and other manufacturing costs;
(b)Due to any other factor affecting the costs of the Seller;
(c)Where the Buyer shall order a different quantity than the quantity upon which the quotation is based;
(d)Where the Goods supplied are other than self colour unmachined, sand moulded in the material indicated.
3.4The payment of the Price and VAT plus any carriage and packing shall be due on or before the 20th day of the month following the month of despatch to the Buyer and time to pay shall be of the essence;
3.5Interest on overdue invoices shall accrue from the date when payment becomes dues from day to day and until the date of actual payment at the rate of 2% per month and shall accrue at such rate after as well as before any judgement;
3.6The Seller reserves the right without prejudice to any other remedies to suspend delivery of or cancel any contract for Goods in the event that any payments are overdue;
3.7The Buyer shall indemnify the Seller on a full indemnity basis for all costs, expenses and losses incurred by the Seller in the enforcement of its rights under these conditions.
4.RETENTION OF TITLE
4.1Notwithstanding delivery the property in the Goods shall not pass to the Buyer until the Buyer has paid in full the Price of the Goods;
4.2Furthermore the property in the Goods shall not pass to the Buyer unless and until the full price of any other delivered goods the subject of any other business transaction between the Buyer and Seller has been paid. Such price and the Prices of the Goods shall hereinafter together be called “the value” and shall where the context so permits include in addition thereto any interest and any costs of repossession incurred pursuant to sub-clause 4.3.4 hereof;
4.3Until the value has been received by the Seller the Buyer will hold the Goods as bailee of the Seller and the Buyer hereby acknowledges that there shall accordingly subsist a fiduciary relationship in respect of the Goods between the Buyer and the Seller. Subject thereto:
4.3.1The Buyer will store the Goods on its premises separately from its own goods or those of any other person in such a way that each invoiced delivery can be readily identified as the Goods of the Seller;
4.3.2 Until payment as aforesaid the Buyer will take all necessary measures for the protection of the Goods including the insurance thereof against all usual risks with a reputable and substantial insurance company for the full replacement value of the Goods. The Buyer will procure that the interest of the Seller is noted upon any policy of insurance effected pursuant hereto and that a copy of the same is supplied to the Seller on the creation thereof;
4.3.3The Buyer is authorised by the Seller to agree to sell the Goods at a price which shall nevertheless be no less than the purchase Price of the Goods hereunder subject to the express condition that the entire proceeds thereof are held in trust for the Seller and are not mingled with other monies or paid into any overdrawn bank account and shall be at all times identifiable as the Seller’s money. The Buyer shall keep records (to be produced to the Seller whenever required) of the name and address of any sub-purchaser and the date and contract price of each delivery and shall if the Seller so requires in writing assign such claims as the Buyer has against such sub-purchasers as emanate from such transaction;
4.3.4The Seller may at any time if payment is overdue in whole or in part without prejudice to any other right arising pursuant to or consequent upon this Agreement, for the purpose of recovery of the Goods, enter upon any premises where the Goods are stored or where they are reasonably thought to be stored and may repossess the same. All costs and expenses reasonably incurred by the Seller in connection with such recovery shall be paid by the Buyer;
4.3.5It is declared for the avoidance of doubt and without prejudice to the generality of the foregoing that the Seller may recover the Goods and payment shall become due if:-
(a)The Buyer does or fails to do anything which would entitle an Administrator, or and Administrative Receiver to take possession of any of its assets or which would entitle any person to present a petition to wind up the Buyer; and/or
(b)The Buyer passes any resolution to wind itself up or publishes a notice convening a meeting of its creditors pursuant to section 98 of the Insolvency Act 1986 or any statutory modification or replacement thereof; and/or
(c)The Buyer if an individual has a Bankruptcy Order made against him or enters into any arrangements for the benefit of his creditors generally.
4.4The Buyer may admix the Goods with other property not belonging to the Seller. However, if the Goods the property of the Seller are admixed with goods the property of the Buyer or are processed with or incorporated therein the product thereof shall become and/or shall be deemed to the sole and exclusive property of the Seller. If the Goods the property of the Seller are admixed with goods the property of any other person other than the Buyer or repossessed with or incorporated therein the product thereof shall become or shall be deemed to be owned in common with that other person.
4.5The provisions of Clause 4.3.3 hereof shall apply mutatis mutandis to the proceeds of sale of any product referred to in Clause 4.4 of this Clause.
4.6Each of the preceding Clauses and sub-clauses shall be construed and shall take effect separately and in the event of one or more such Clauses or sub-clauses being held ineffective this shall not affect the validity of the remaining Clauses or sub-clauses.
5.WARRANTIES AND LIABILTY
No warranty is given by the Seller that the Goods will at the time of delivery correspond to the description given by the Seller and any description or illustration contained in any of the Seller’s price lists, catalogues or advertising are for a general guide only and do not form part of any contract between the Buyer and the Seller. Except where the Buyer is dealing as a consumer (as defined in the Unfair Contract Terms Act 1977 section 12) all other warranties, conditions or terms relating to fitness for purpose, merchantability or condition of the Goods and whether implied by statute or common law or otherwise are excluded.
6.DELIVERY OF GOODS
6.1Subject to the provisions of this clause, delivery of the Goods shall be made to the Buyer’s address on the Delivery Date wherever possible. The Buyer shall make all arrangements necessary to take delivery of the Goods whenever they are intended for delivery.
6.2When deliveries are spread over a period each individual consignment shall be invoiced when despatched and each invoice shall be treated as a separate account and payable accordingly;
6.3The Seller shall be under no obligation to meet the Delivery Date in the event of industrial actions, accidents, wind storm, tempest or force majeure;
6.4Due to inherent difficulties in the nature of the Seller’s business, the Buyer hereby accepts that all Delivery Dates are approximate and the Seller accepts no responsibility for late delivery;
6.5The Seller reserves the right to deliver excess quantities of goods to the Buyer and to invoice in accordance to the price of those goods as originally quoted to and accepted by the Buyer and the Buyer shall accept such delivery or deliveries and pay the price accordingly;
6.6Delivery periods in respect of Goods for which a sample has been provided shall commence from the date of receipt of written approval of such sample;
6.7Any stillages or pallets used for delivery purposes shall be returned at the Buyer’s risk and cost by the Buyer to the Seller.
7.ACCEPTANCE OF THE GOODS
7.1The Buyer shall be deemed to have accepted the Goods 24 hours after delivery to the Buyer.
7.2After acceptance, the Buyer shall not be entitled to reject the Goods which are not in accordance with the contract.
8.TITLE AND RISK
8.1Title shall not pass on delivery of the Goods but in accordance (if at all) with Clause 4 hereof;
8.2Risk shall pass on delivery of the Goods;
8.3The Buyer shall insure the Goods with a reputable insurance company against all usual risks for their full replacement value.
9.REMEDIES OF BUYER
9.1Where the Buyer rejects any Goods then the Buyer shall have no further rights whatsoever in respect of the supply to the Buyer of such Goods or the failure by the Seller to supply Goods which conform to the contract of sale;
9.2Where the Buyer accepts or has been deemed to have accepted any Goods then the Seller shall have no liability whatsoever to the Buyer in respect of those Goods;
9.3The Seller shall not be liable to the Buyer for late delivery or short delivery of the Goods,
10.1This contract shall not be cancellable by the Buyer without the express written consent of the Seller;
10.2In the event that the Buyer shall fail to make payment in full when due, or commit any other breach of this contract or if any distress or execution shall be levied upon any of the Buyer’s Goods or if the Buyer offers to make any arrangement with his creditor or commits an act of bankruptcy or if any petition in bankruptcy is presented against the Buyer or the Buyer is unable to pay its debts as they fall due or, if being a limited company, any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction without insolvency) shall be passed or presented or if a receiver, administrator, administrative receiver or manager shall be appointed over the whole or any part of the Buyer’s business or assets or if the Buyer shall suffer any analogous proceedings under foreign law all sums outstanding in respect of the Goods shall become payable immediately and the Seller may in its absolute discretion and without prejudice to any other rights which he may have:
10.2.1suspend all future deliveries of goods to the Buyer and/or terminate the contract without liability upon its part; and/or
10.2.2exercise any of its rights pursuant to clause 4 hereof;
10.3In the event that a Buyer purports to withdraw an order or alter the requirements or specifications of an order, the Seller may at his absolute discretion charge to the Buyer the costs of any materials purchased or work carried out in contemplation of such an order.
11.1Unless agreed in writing to the contrary, all samples supplied by the Seller to the Buyer will be payable for in full by the Buyer unless such samples are returned to the Seller, undamaged, carriage paid, within 30 days of the date of despatch of such samples;
11.2The Seller reserves the right in the event that work is required in respect of new patterns or tooling, altered patterns or tooling or patterns or tooling that have not been worked on by the Seller before to submit sample castings to the Buyer for approval. The Seller shall be under no obligation whatsoever to commence work upon or complete any order relating to such samples unless samples have been approved in writing by the Buyer. In the event that the Goods ordered are in small quantities, the Seller will not provide samples unless specifically requested by the Buyer at the time of order. The Buyer shall be responsible for the cost of such samples.
12.PATTERNS AND TOOLING
12.1Where the Goods are to be made to the Buyer’s own specification, pattern or design, the Buyer shall be responsible for the suitability and fitness of the specification, pattern or design and shall indemnify the Seller on a full indemnity basis against any infringement or any patent, registered design, copyright or any other intellectual property right and loss, damages or expense arising from any such infringement or claim for infringement.
12.2All patterns and tooling shall be the property of the Seller unless separately itemised and paid for in full by the Buyer;
12.3The Buyer shall be responsible for the full cost of replacement, alteration or repair to any patterns or tooling supplied by the Buyer other than due to the negligence of the Seller;
12.4No responsibility whatsoever is accepted by the Seller with regard to any damage caused to any patterns or tooling of the and the Buyer shall ensure that appropriate insurance cover with a reputable insurance company is in force at all relevant times;
12.5The Seller reserves the right to charge the Buyer a contribution towards the costs of storage of any patterns or tooling of the Buyer;
12.6Where the Buyer supplies patterns specifically for the purpose of manufacture by the Seller of castings in accordance with an earlier enquiry by or order by the Buyer, the Seller reserves the right to amend any quotation or the price in respect of such manufacture;
13.DAMAGE, SHORTAGE AND LOSS
Subject to clause 7 hereof the Seller shall if it accepts that the goods supplied are defective, at the written request of the Buyer and if in all circumstances it is practicable, replace such defective goods PROVIDED ALWAYS that;
13.1The Seller’s liability (if any) shall be strictly limited to rectifying defects or replacing defective goods and the Seller shall not be liable for any loss arising out of use of the Goods or any other incidental loss;
13.2The Buyer shall be responsible for providing full written particulars or defects and defective goods as soon as the defect is apparent and shall at its own expense return the Goods to the Seller as soon as possible and in any event within three months of the date of despatch from the Seller;
13.3Save as expressly provided in this clause, the seller shall have no liability whatsoever, whether for consequential loss or otherwise to the Buyer in connection with any defective goods or any damage to or defects in any goods;
13.4Notwithstanding any of the provisions of this clause, no claims for damage, shortage, loss or any other action may be made by the Buyer unless full particulars in writing are supplied to the Seller within 10 days of the Delivery Date and that the Goods have been signed for by the Buyer as “not examined” and have been handled by the Buyer in accordance with the instructions of the carrier. In the event of non-delivery or total loss, no claim may be made by the Buyer unless notice in writing of such non-delivery or total loss is supplied to the Seller within 10 days from the Delivery Date;
13.5In the event that defective goods are replaced by the Seller, the Delivery Date in respect of such replacement goods shall be extended to such a date as the Seller may reasonably require;
13.6Without prejudice to the foregoing conditions, the Seller makes no warranty that the Goods are suitable or fit for any purpose and the Buyer shall satisfy itself that all statements or undertakings contained in the British Standards, ISO recommendations or any other standard or technical specification are complied with and that the Goods are suitable for the purpose or application for which they are to be or actually are used and the Goods shall not be incorporated into any other product unless such statement, undertaking, standard or technical specification or suitability has been complied with or satisfied.
Any tests or certification carried out by the Seller shall unless agreed in writing by the Seller to the contrary be charged separately to and paid for by the Buyer.
Unless otherwise specified and agreed, prices quoted are ex-works.
The Seller reserves the right to correct any clerical or typographical error made by its employees at any time.
17.HEALTH AND SAFETY AT WORK ACT 1974
The attention of the Buyer is drawn to the provisions of Section 6 of the Health & Safety at Work Act 1974. The Company will make available upon request information on the design and specifications of its products, for the Buyer to ensure that as far as is reasonably practicable they are safe and without risk to health when properly used. It is the responsibility of the Buyer to take such steps as are necessary to ensure that the appropriate information relevant to the goods is made available to any person to whom the Buyer supplies them.
18.SET-OFF COUNTERLAIM AND LIEN
18.1The Buyer may not withhold payment of any invoice of other amount due to the Seller by reason of any right of set-off or counterclaim which the Buyer may have or allege to have for any reason whatsoever;
18.2The Seller shall be entitled to a general lien on all goods of the Buyer in the Seller’s possession (including goods of the Buyer which have been paid for) for the unpaid price of all goods sold to the Buyer by the Seller under this or any other contract.
This contract is subject to the Laws of England and Wales. If any dispute or difference shall arise between the Buyer and the Seller as to the meaning of the Conditions, then it shall be referred to the determination of an arbitrator to the appointed by the agreement of the partied or (in default of the agreement within twenty-one days or the service upon one party of the written request to concur to such an appointment) by the President for the time being of the Chartered Institute of Arbitrators, such arbitrator to act as expert and not as an arbitrator, his decision to be final and binding on all parties.