Windmill Extrusions Limited
Terms and Conditions for the Sale of Goods
1.1 “Company” means (Windmill Extrusions Limited) and also (where the context so permits) its assigns and subcontractors’;
1.2 “Customer” means the person, firm or company placing an order with the Company;
1.3 “Contract” means the contract for the supply of Goods or Services formed by the Company’s acceptance (which however made or communicated, shall be deemed made subject to those conditions) of the Customer’s order;
1.4 “Goods” means all those goods and materials which are the subject of the Customer’s order, and which are to be supplied to the Customer by the Company under these conditions;
1.5 “Services” means those services which are the subject of the Customer’s order, and which are to be supplied to the Customer by the Company under these conditions. The headings for these conditions are for convenience only and shall not affect their interpretation.
1.6 Words in the singular shall include the plural and vice versa, references to any gender shall include the other and reference to legal persons shall include natural persons and vice versa.
- Formation of the Contract
2.1 All goods and services sold by the Company are sold subject to these conditions which the Customer shall have indicated unqualified acceptance of by the placing of an order for goods and/or services, or the acceptance of the goods. The conditions shall be the sole terms and conditions of any sale by the Company to the Customer.
2.2 Notwithstanding the Company may have given a detailed quotation, no contract shall exist until the Company has received from the Customer an order, whether oral or in writing, and has acknowledged such order either by written acceptance of the order or orally by a duly authorised representative of the Company. Where the Customer’s order is not in writing and has not been confirmed by the Customer in writing, within 7 days of placing such order the Company’s record of the order shall be deemed to be correct in all respects.
2.3 No representative, employee, salesperson or agent of the Company has the Company’s authority to vary, amend or waive any of these conditions on behalf of the Company and no amendment or addition to any of these conditions shall be deemed to have been accepted unless accepted in writing by the Company.
2.4 The terms contained in these conditions will prevail, and any trade practice with the Company, or any terms and conditions proposed by the Customer orally or on the Customer’s order form or other similar document shall not be binding on the Company.
3.1 Quotations issued by the Company are open for acceptance for thirty days from the date of the quotation and will lapse thereafter. The prices, quantities and delivery times stated in such quotations are not binding on the Company. They are commercial estimates by which the Company will make all reasonable efforts to achieve.
- Description of Goods or Service
4.1 All specifications, descriptions, drawings, photographs, illustrations, dimensions, weights and other technical information and particulars of the goods and/or service and any advertising matter or sample books are only intended to serve as a guide and not be relied on by the Customer or treated as binding or as forming part of the contract.
5.1 Unless otherwise stated in writing by the Company the price payable for the goods and/or services shall be stated in the Company’s price list (current at the date of despatch). In the case of an order for delivery by instalments, the price payable for each instalment shall be stated in the Company’s price list as the date of despatch of such instalment.
5.2 The Company shall be entitled to increase the price of the goods and/or services to take account of increases in costs including (but not limited) to labour, overheads, transportation and/or fluctuation of exchange rates between the date of the Company’s quotation (or if no quotation is issued the Customer’s order) and the date of delivery.
5.3 The price is exclusive of the cost of delivery and exclusive of Value Added Tax, customs duties and expenses in respect of the goods and/or services, all of which shall be added to the price for the Customer’s account unless otherwise stipulated in writing by the Company.
- Terms of Payment
6.1 Unless otherwise agreed in writing the Customer shall make payment for the goods and/or services in pounds sterling by the end of the month following the month in which the goods and/or services are invoiced, save that payment shall become due in any event forthwith upon the occurrence of any of the events referred to in clause 13 hereof. The Company shall be entitled to invoice each instalment when delivery has been made by pursuant to clause 8 below.
6.2 Unless otherwise agreed in writing the Customer shall not be entitled to any discount.
6.3 The Customer shall not purport to set off or withhold any payments claimed or due to the Company under any other contract.
6.4 In the event of late payment, the Company may without prejudice to its other rights and remedies hereunder charge interest at the rate of 3% per annum above the base lending rate from time to time of Barclays PLC or such other UK bank as the Company shall at its sole discretion select. Such interest will accrue from the date upon which payment was due until payment is received in full. Such interest shall continue both before and after judgement.
6.5 If the Customer fails to make any payment that is due under this or any other contract with the Company, the Company may without prejudice to its other rights or remedies, suspend all services being carried out for the Customer and all further deliveries of goods to the Customer until all such payments, with interest hereon, together with the payments for the price of goods ready for delivery to the Customer, have been made in full.
6.6 Time of payment shall be the essence of the contract.
6.7 In the event that any packaging used to safely store the goods in transit is not returned to the Company in good condition, such conditions to be determined solely by the Company, the cost of replacing the same at the Company’s premises shall be paid by the Customer.
6.8 This contract is divisible. Each delivery made hereunder shall be deemed to arise from a separate contract and shall be invoiced separately; any invoice for a delivery shall be payable in full in accordance with the terms of payment provided for herein, without reference to and notwithstanding any defect of default in delivery of any other instalment.
- Passing of Property and Risk
7.1 Except as otherwise provided in these conditions, the risk of loss or damage to the goods shall pass to the Customer upon delivery of the goods in accordance with clause 8.
7.2 The Company shall retain title to and ownership of the goods until it has received payment in full of all sums due under this contract and any other contracts between the Company and the Customer. If payments received from the Customer are not stated to refer to a particular invoice the Company may appropriate such payments to any outstanding invoice.
7.3 If any of the goods owned by the Company are attached to, mixed with or incorporated into any other goods not owned by the Company so that the goods in question are not separate from the resulting composite or mixed goods, then immediately upon manufacture all such composite or mixed goods shall belong to the Company absolutely and not by way of charge until the goods have been paid for in full or until the Company recovers possession of and resells sufficient of the composite or mixed goods to discharge the purchase price in full and the Company’s costs recovered, any excess to be accounted for by the Customer.
7.4 Until payment of the purchase price the Customer shall be the bailee of the goods and any mixed goods for the Company and the goods and any mixed goods shall be stored separately from any goods which belong to the Customer or any third party and shall be clearly marked and identifiable as being the Company’s property.
7.5 The Customer may only re-sell the goods, as the Company’s agent and bailee of the goods, which belong to the Company. All proceeds received from any such sale shall be held on trust to settle any sums due in respect thereof to the Company and pay any balance to the Customer. Such proceeds shall not be mingled with other monies and shall at all times be identifiable as the Company’s money.
7.6 If the Customer fails to make any payment to the Company when due, compounds with its creditors, executes an assignment for the benefit of its creditors, has a bankruptcy order made against it or being a company, enters into voluntary or compulsory liquidation or has an administrator or administrative receiver or receiver appointed overall or part of its assets or takes or suffers any similar action in consequence or becomes insolvent or if the Company has reasonable cause to believe that any of these events is likely to occur, the Customer grants the Company the right, without prejudice to any other remedies:
(a) To enter without prior notice to any premises where goods owned by it may be and to repossess and dispose of any goods owned by it so as to discharge any sums owed to it by the Customer under this or any other contract.
(b) To require the Customer not to resell or part with possession of any goods owned by the Company until the Customer has paid in full all sums owed by it to the Company under this or any other contact; and
(c) To withhold delivery of any undelivered goods and stop any goods in transit.
Unless the Company expressly elects otherwise, any contract between it and the Customer for the supply of goods shall remain in
Existence not withstanding any exercise by the Company of its rights under clause 7.
7.7 The goods shall, once the risk has passed to the Customer in accordance with this clause 7 or otherwise, be and remain at the Customer’s risk at all times unless and until the Company has retaken possession of them and the Customer shall comprehensively insure the goods against loss or damage by accident, fire, theft or other risks usually covered by insurance in the type of business carried out by the customer.
- Orders and Delivery
8.1 Orders are accepted by the Company subject to ability to carry out the services or the availability of goods for delivery.
8.2 Any time, date or period named by the Company for the completion of services or delivery, or the completion of the goods is given and intended as an estimate only and shall not be the essence of the contract. The Company shall use all reasonable endeavours to meet any such date but it shall not be binding on the Company and the Company shall not incur any liability whatsoever for any loss or damage whether direct, indirect or consequential resulting from delay or prevention of delivery of the goods or of the completion of services in whole or in part howsoever caused.
8.3 Delivery of goods within the UK will be made at the cost of the Customer to the address specified by the Customer by any method of transportation regarded as suitable by the Company and in the case of export outside the UK, delivery will be agreed.
8.4 If the Customer refuses or fails to take delivery of the goods on the date of delivery, the Company will be entitled to invoice the Customer for the price of the goods and at its sole discretion without prejudice to its other rights to store the goods at the risk of the Customer and the Customer shall in addition to the price payable under clause 5 pay all costs and expenses of such storage and any additional cost of carriage incurred.
8.5 The Company reserves to right to deliver in instalments at its discretion. All goods are sold subject to reasonable availability and the Company reserves the right to substitute materials without notice.
8.6 The Customer shall accept the supply of such quantity of the goods (whether more or less) as reasonably approximates to the stipulated amount of the customer order, unless agreed otherwise in writing.
8.7 The Company shall not be liable for any loss of or damage howsoever arising (whether in contact, tort (including negligence) or breach of statutory duty or otherwise) to the goods whilst in transit or for any claim that the goods and/or services are defective or do not otherwise comply with the contract unless written notice is given to the Company by the Customer.
(a) In the case of loss, damage, defect or non-compliance with the contract within 7 days of the date of delivery of goods or date of completion of services or:
(b) In the case of goods not delivered within 7 days of the date upon which the Customer is notified that the goods have been consigned for delivery, provided that if the Customer proves that:
(i) it was not reasonably possible for persons to give such notice to the Company within the appropriate period and;
(ii) that notice was given within reasonable time, the Company shall not be entitled to rely on the time limits as set out in clause 8.7.
8.8 In the event that the Customer has complied with clause 8.7 and that the Customer has a valid claim for defect, loss, damage or non-compliance with the contract the Company undertakes, at its option, either to reprocess or replace the goods concerned or rectify or reperform (save (a) to the time of performance) the services at its expense. The Customer shall not be entitled to terminate the contract by reason of defective or damaged goods or non-compliance of the service with the contract.
8.9 Where the goods are handed to a carrier for carriage to the Customer or to a UK port for export any such carrier shall be deemed to be an agent of the Company and not of the Customer for the purpose of section 44, 45 and 46 of the Sale of Goods Act 1979.
8.10 The Customer agrees that section 32(3) of the Sale of Goods Act 1979 shall not apply to goods sent by the Company.
9.1 Where services are to be performed on the Customer’s premises or the premises of a third party, the Customer shall:
(a) ensure that the Company’s personnel have full and free access during working hours to the premises to enable the Company to carry out the services; and
(b) the Customer shall take all such steps which may be necessary to ensure the safety of any of the Company’s personnel who visit the premises concerned. For the purpose of this clause 9, personnel shall include but not be limited to employees, officers, representatives and sub-contractors.
10.1 Where a full consignment of goods are made to the Customer’s order to be delivered in instalments when requested by the Customer (“Called-Off”) and no final delivery date is specified then any goods not Called-Off and delivered within 3 months of the Customer being notified of their availability shall be deemed to have been Called-Off.
10.2 Where goods are made to the Customer’s order to be Called-Off on or before a specified date than any goods not Called-Off before that date shall be deemed to have been Called-Off on that date.
10.3 Any goods deemed to have been Called-Off under clause 10.1 or 10.2 above may be invoiced and delivered to the Customer or invoiced and stored at the Customer’s risk and expense until delivery.
10.4 Following any deemed delivery under clause 10.1 or 10.2 above the Company shall be under no further obligation to manufacture or hold stocks of the goods deemed to have been Called-Off and delivered until a further order from the Customer has been accepted.
11.1 In the event that the goods or services ordered by the Customer can only be manufactured or carried out with the use of specialised tooling:
(a) any tooling provided by the Customer to be used by the Company to manufacture the goods shall remain the property of the Customer, shall be maintained by the Customer and shall be at the Customer’s risk whilst in possession of the Company; and
(b) any tooling which must be acquired or produced by the Company shall be acquired or produced at the Customer’s cost and such tooling shall be the property of the Company and shall remain at the Company’s risk.
- Intellectual Property
12.1 Any and all intellectual property right including, without limitation, patents, registered designs and any right to apply for the same, copyright, design rights, know-how and any right analogous to the same subsisting anywhere in the world any time in or relating to the tooling as referred to in clause 11.1(b) and/or the goods (“Intellectual Property”) shall belong to the Company absolutely.
12.2 The Customer hereby assigns to the Company, with full title guarantee (free from all liens, charges and encumbrances) all right, title and interest in and to the intellectual property and irrevocably undertakes not to assert any rights whatsoever against the Company relating in any way to the intellectual property and shall forthwith do all such acts on the Company shall reasonably require to ensure the legal title in the intellectual property vests in the Company.
13.1 If the Customer:
(a) defaults in any payment or is otherwise in breach of any of its obligations to the Company under the contract or any other contract with the Company (and fails to remedy the breach having been given 14 days written notice of such failure); or
(b) compounds with executes an assignment for the benefit of its creditors or commit any act of bankruptcy or being a company enters into voluntary or compulsory liquidation or suffers a receiver of administrative receiver or administrator to be appointed over all or any part of its assets or takes or suffers any similar action in consequence of debt or becomes insolvent or should the Company have reasonable cause to believe that any of these events is likely to occur or should the Company have any doubts whatsoever about the solvency of the Customer. The Company may, by notice in writing to the Customer, without prejudice to any other rights, forthwith suspend or cancel any uncompleted part of the contract or stop any goods in transit or require payment in advance or satisfactory security for further deliveries under the contract.
13.2 The Customer may terminate the contract only with the consent of the Company. If such consent is granted it will be subject to the express condition the Customer shall indemnify the Company against all loss, damage, claims or actions of whatsoever nature caused by or arising out of such termination.
- Warranties and Limitation of Liability
14.1 In substitution for all rights which the Customer would or might have but for these conditions the Company warrants that any goods manufactured by the Company or services carried out by the Company will be free from defects in materials and workmanship for a period of 3 months from the date of delivery of the goods or completion of the services and the Company will at its own cost and its own option replace or repair goods or rectify or reperform services or credit the Customer with the purchase price of any goods or services, the examination of which by the Company shows to be defective provided that:
(a) the Customer makes a full inspection of the goods or services immediately upon delivery or completion.
(b) the Customer notifies the Company forthwith of any defects which it discovers.
(c) the Customer has used the goods in accordance with the instructions or recommendations of the Company.
(d) the goods have not been adjusted, altered, adapted or repaired by any party other than that of the Company.
(e) the goods are either made available to the Company for inspection or returned to the Company at the Customer’s own expense as the Company may request.
14.2 In the case of goods being manufactured by the Company or services carried out by the Company, the Company will pass on to the Customer (to the extent that is able) any benefits obtainable under any warranty given to the Company provided that the goods or services have been accepted and paid for.
14.3 Except as provided for in these conditions, any warranties, (whether express or implied by statue of common law or howsoever) including but without limitation those of satisfactory quality or of fitness for a particular purpose (even if that purpose is made known expressly or by implication to the Company) are hereby excluded.
14.4 Subject to clause 14.5 the Company shall under no circumstances be liable for any indirect, special or consequential loss (including but not limited to loss of anticipated profit or third party claims) howsoever arising whether in contract, tort (including negligence) or breach of statutory duty or otherwise.
14.5 Neither party excludes loss arising from death or personal injury caused by negligence.
14.6 Subject to clause 14.5 the aggregate liability of the Company (whether in contract, tort (including negligence) or breach of statutory duty or otherwise) to the Customer for any loss or damage (whether asserted by the Customer or third parties) or whatsoever nature and howsoever caused shall be limited to and in no circumstances shall excess the price of the goods and/or service.
14.7 The Customer shall fully indemnify the Company, its employees, subcontractors and agents in respect of all actions, suits, claims, demands, costs, charges or expenses arising (whether asserted by the Customer or third parties) out of or in connection with the supply of the goods and/or services or this Agreement which is in excess of the limit of the Company’s liability as set out in clause 14.
14.8 All recommendations and advice given by or on behalf of the Company to the Customer as to methods of storing, using or applying the goods, the purpose for which the goods may be applied and suitability of using the goods in any manufacturing process or in connection with any other materials are given without liability on the part of the Company.
14.9 The Company makes no representation or warranty that use of goods does not infringe the rights of any third party and the Company accepts no liability in this respect. The Customer indemnifies the Company against all costs, claims, liabilities, damages and expenses to which the Company may become liable as a result of the manufacture of goods or other performance of its obligations under the contract done or performed specifically to the Customer’s specifications which constitute an infringement or other violation or any patent, copyright, design (whether or not registered or the subject of an application for regulations) know-how or other intellectual property rights of any third party.
15.1 The Company shall not be liable to the Customer for any loss or damage caused to or suffered by the Customer as a direct or indirect result of the supply of the goods or performance of the services by the Company being prevented, restricted, hindered or delayed by reason of any circumstances outside the control of the Company including without limitation, circumstances affecting the provision of all or any part of the goods and/or services by the Company’s usual source of delivery or supply.
16.1 The Waiver by the Company of any right, and failure by the Company to exercise any right or to insist on the strict performance of any provision of the Agreement, shall not operate as a Waiver of, or preclude any further exercise or enforcement of (as the clause may be) or other exercise or enforcement by the Company of that or any other right or provision.
17.1 Each provision of these Conditions of Sale is severable and distinct from the others. The parties intend that every such provision shall be and remain valid and enforceable to the fullest extent permitted by law. If such provision is, or at any time becomes to any extent invalid, illegal or unenforceable under any enactment or rule or law; it shall to that extent be deemed not to form part of the Contract of Sale or the agreement between the parties but (except to that extent in the case of that provision) it and all other provisions of the Contract shall continue in full force and effect and their validity, legality and enforceability shall not thereby be affected or impaired.
- Governing Law
18.1 The construction, validity and performance of the Contract shall be governed by English Law and the parties submit to the non-exclusive jurisdiction of the English courts.