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Our Terms and Conditions
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TERMS AND CONDITIONS OF SALE
The following Terms and Conditions of sale shall govern all contracts for the sale or supply of Goods by Speed Plastics Limited ("the Company").
In these Conditions:
"Buyer" means any person, firm or company at whose request Goods are supplied by the Company; and "Goods" means any goods or replacements goods together with any services supplied to the Buyer under the contract. These Conditions shall apply to every contract entered into with the Company except as varied by express agreement in writing. The headings are for convenience only and shall not affect construction of these Conditions.
1. FORMATION AND PARTIES
(a) The Buyer's order to the Company is an offer to enter into a contract upon these Conditions. The contract becomes binding only upon the Company despatching to the Buyer its Acknowledgement of Order or the Order being otherwise accepted by the Company. Any terms or conditions proffered at any time by the Buyer are hereby excluded. A quotation in whatever form given by the Company does not constitute an offer.
(b) The Buyer shall not assign the benefit of the contract without the Company's prior written consent.
(c) The contract is not cancellable by the Buyer without the express written consent of a director or other authorised person on behalf of the Company. If such consent is given, it is made on the express condition that the Buyer shall indemnify the Company against all quantifyable costs and expenses incurred up to the time of cancellation and against all other loss, damage, claims or actions sustained by the Company arising out of such cancellation unless otherwise agreed in writing.
2. PRICE
The Company reserves the right to vary the price of Goods by any amount attributable to a change in or insufficiency of the Buyer’s instructions or to any variation in the cost of materials labour transport duties taxes or any costs of whatsoever nature between the date of acceptance of the order and the date of delivery to the Buyer.
3. SPECIFICATION
(a) If the Goods are to be manufactured or any process is to be applied to the Goods by the Company in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Company against any loss, damages, costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Company’s use of the Buyer’s specification.
(b) The Company reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or regulatory requirements or, where the Goods are to be supplied to the Buyer’s specification, which do not materially affect their quality or performance.
(c) The Buyer shall be solely responsible for any matter which the Company prints on the Goods, on the instructions or at the request of the Buyer. The Buyer shall indemnify the Company against any claim or proceeding made or brought by a third party arising therefrom.
(d) In the case of machine readable codes or symbols the Company shall print the same as specified or approved by the Buyer in accordance with generally accepted standards and procedures. The Buyer shall be responsible for satisfying himself that the code or symbol will read correctly on the equipment likely to be used by those for whom the code or symbol is intended.
(e) The Buyer shall indemnify the Company against any claim by any party resulting from the code or symbol not reading correctly for any reason, except to the extent that such claim arises from any failure of the Company to comply with paragraph (d) above which is not attributable to error falling within the tolerances generally accepted in the trade in relation to printing of this sort.
4. QUANTITY
(a) The Company shall be entitled to deliver the Goods by instalment of any size and in any order.
(b) Unless otherwise agreed in writing between the Company and the Buyer, the Buyer shall take delivery of the Goods tendered notwithstanding that the quantity so delivered shall be greater or less than the quantity ordered provided that such discrepancy in quantity shall not exceed 10% and the price shall be adjusted pro rata to the discrepancy.
(c) When an order calls for delivery by instalment, these instalments shall be aggregated for the purpose of Clause 4(b) above.
5. TOOLS
(a) ‘Tools’ means any electrodes, cutters, patterns or other tooling, jigs and fixture acquired or obtained by the Company for the purpose of manufacturing the Goods being the subject of the order and not for any other purpose, and will be charged to the Buyer, payment being made in accordance with these conditions of sale.
(b) The Company shall advise the Buyer when normal wear and tear has made major maintenance or tool replacement necessary for continued satisfactory production, such maintenance or replacement to be carried out at the Buyer’s expense.
(c) The Company shall have the right to destroy or otherwise dispose of tools which remain unused on their premise for a period of three years after completion of the contract.
6. BUYER’S PROPERTY
(a) Buyer’s property, when supplied, will be held at Buyer’s risk.
(b) Every care will be taken to ensure the best results are achieved when using tools and other material supplied by the Buyer, but responsibility will not be accepted for imperfect work caused by defects, or unsuitability of, the materials supplied.
7. QUALITY
Whilst every effort will be made to supply Goods in accordance with the quality of samples submitted or quoted, this contract is not a contract of sale by sample.
8. COLOUR
The colour of the Goods shall be subject to reasonable variation.
9. DELIVERY
(a) The Company may at its option deliver by instalments. Each instalment shall constitute a separate contract on these Conditions.
(b) Specified delivery dates, unless expressly agreed to the contrary, are estimates only. Where contracts provide for a delivery without specifying a date, the Company shall aim to deliver within 14 days of the Goods being ready in the opinion of the Company.
(c) Time for delivery is not of the essence of the contract. The Company shall use its reasonable endeavours to deliver Goods by stated delivery dates, but any failure to comply with such dates shall not give rise to any claim. The Company shall not be liable for any loss whatsoever in the event of late delivery or non delivery of Goods and the Buyer shall not be entitled to refuse to accept any late deliveries or to treat late delivery as a breach of contract.
(d) To the extent that any contract provides for deferral deliveries without specifying the delivery dates, the Buyer shall be obliged to accept each delivery within two months of the first delivery being made or six months from the date of order whichever is the earlier. In the event of failure to accept any delivery that delivery shall be immediately invoiced and storage costs charged to the Buyer’s account, the Goods being held at the Buyer’s risk.
(e) Any failure or defect in any one delivery shall not vitiate the contract as to the remaining deliveries.
10. LOSS OR DAMAGE
(a) Risk of loss or damage to Goods passes to the Buyer on delivery to or collection by the Buyer or its nominated carrier (“Delivery”).
(b) The Company shall not be liable for loss or damage to Goods prior to Delivery unless:-
(i) the Company and (if appropriate) the carrier are notified in writing of any damage to the Goods within 14 days of receipt; or
(ii) the Company and (if appropriate) the carrier are notified in writing of the non-receipt of any Goods within 10 days of the invoice date.
Indemnity
(c) The Buyer shall indemnify and keep indemnified the Company against all actions, claims, costs, damages, demands and expenses or other loss arising out of a defect in the Goods (including, without limitation, all liabilities incurred under the Consumer Protection Act 1987) to the extent occasioned or contributed to by any act or omission of the Buyer its servants, agents or persons under its control.
11. INSPECTION
(a) The Buyer shall inspect the Goods immediately upon receipt and shall (unless such inspection cannot be carried out and the delivery note is marked "not examined") be deemed to have accepted the Goods as delivered subject to Clause 10(b)(i) above.
(b) In the event of non-receipt of any Goods by the Buyer or his nominated carrier the liability of the Company to the Buyer shall be limited to the rectification of the omission by the delivery of Goods equivalent to the Goods not so received. The provisions of Clause 10(b)(ii) above shall also apply.
(a) The Company's liability for Goods damaged in transit shall in all circumstances be limited to (at the Company's option) the repair or replacement of the Goods. The Company shall have no further liability to the Buyer and all claims for liquidated damages, loss of profit and other consequential losses are specifically excluded.
12. WARRANTY
(a) If within 12 months after Delivery a material defect in the Goods shall be discovered and:
(i) the Buyer notifies the Company within fourteen days after discovery giving particulars and either at its own expense and risk returns the Goods to the Company; or (at the Company's sole option) permits the Company to inspect the same; and
(ii) such defect has arisen from faulty materials employed or workmanship carried out by the Company existing but not discoverable upon inspection by the Buyer at time of receipt,
then the Company shall supply replacements or, at its option, credit the Buyer's account with the Company or refund to the Buyer the purchase price paid for and the cost of returning the defective Goods.
(b) The Company's liability for defective Goods is limited in all circumstances to (at the Company's option) delivery of replacements or crediting or refunding of the invoice value to the Buyer and the Buyer shall accept such of the aforementioned remedies as the Company shall proffer as being fulfilment of the Company's obligations under the contract.
(c) The warranty in Clause 12(a) above is also given by the Company subject to the following conditions:-
(i) the Company shall be under no liability in respect of any defect arising from any drawing, design, specification or materials supplied by the Buyer;
(ii) the Company shall be under no liability in respect of any defect arising from fair wear and tear or normal deterioration, willful damage, negligence, abnormal working conditions, failure to follow the Company’s instructions (whether oral or in writing), misuse or improper or faulty use handling or storage of the Goods, or alteration or repair of the Goods with out the Company’s approval;
(iii) the Company shall be under no liability if the total price for the Goods has not been paid by the due date for payment;
(iv) the warranty does not extend to parts, materials or equipment not manufactured by the Company, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Company.
13. RETENTION OF TITLE
(a) Notwithstanding Delivery and the passing of risk, or any other provision in these Conditions, legal title in the Goods, whether they remain in a severable state or become mixed with any other product, shall remain with the Company until such time as the Company have received payment in full of all sums owed to it on any account by the Buyer (whether arising under this or any other contract).
(b) The Buyer shall at its risk and expense insure all Goods supplied by the Company from the date of delivery for their full replacement value against all the usual risks and keep all Goods safe and in good condition stored separately and clearly identifiable as the Company's property with all identifying marks intact and legible. The Buyer shall be entitled to possession of the Goods as bailee of the Company.
(c) The Buyer shall have a licence and may use or sell the Goods or any of them in the ordinary course of its business on the basis that any proceeds of sale shall be held in trust by the Buyer for the Company absolutely. The Buyer's rights under this condition shall be conditional upon the Buyer including a retention of title condition substantially in the form of that contained at Clause 13(a) above in all contracts entered into by the Buyer for the sale of the Goods or any of them.
(d) The Buyer's rights under Clause 13(c) shall terminate immediately on notice from the Company or automatically on the presentation of a petition for the winding-up of the Buyer or for the appointment of an administrator of its undertaking or if the Buyer has an administrator, receiver or administrative receiver appointed over any of its assets or undertaking or it goes into voluntary liquidation (other than for the purposes of a bona fide reconstruction or amalgamation of a solvent company) or if the Buyer ceases to carry on business.
(e) The Company may at any time enter the Buyer's premises for the purpose of inspecting the Goods identifying the Goods as the Company's property and removing the Goods. The Buyer hereby irrevocably authorises the Company to enter upon its premises for that purpose.
(f) Upon the termination of the Buyer's powers of use and sale under Clause 13(e) above the Company shall be entitled at its option (i) to cancel all or any part of any orders for Goods placed with it by the Buyer and not yet delivered (whether or not accepted or whether or not under the contract or any other contract) and/or (ii) to deal direct with any customers of the Buyer in which case any proceeds of any sale to such customers shall belong to the Company absolutely.
14. INTELLECTUAL PROPERTY RIGHTS
(a) (i) The Buyer acknowledges that any and all of the trade marks, trade names, copyrights, patents and other industrial rights used or embodied in or in connection with the Goods including software, hardware and other parts thereof in which the Company has an interest shall under the contract formed between the parties hereto, be and remain the sole property of the Company and the Buyer shall not during or at any time after the completion expiry or termination of the contract in any way question or dispute the ownership by the Company of any such rights.
(ii) In the event that new inventions, designs and processes evolve in performance or as a result of the contract, the Buyer acknowledges that the same shall belong to the Company unless otherwise agreed in writing by the Company.
15. PAYMENT
(a) Subject to satisfactory trade, banker's and other requisite references, and where no other terms of payment have been specifically agreed in writing, the Company's terms are cash payment in full to be made within 30 days after the date of the invoice. No discount or allowance will be made unless specifically stated by the Company in writing. Interest will be charged on all sums due under or by way of damages for breach of the contract at the rate of 3% per annum above the base rate of The Governor and Company of the Bank of Scotland from time to time in force and shall be calculated and accrue on a day to day basis from the date on which payment fell due until payment (whether made before or after judgement has been obtained by the Company against the Buyer).
(b) Time for making payment shall be of the essence of the contract.
(i) The Company may at any time, in its absolute discretion, appropriate any payment made by the Buyer in respect of Goods to such outstanding debt as the Company thinks fit, notwithstanding any purported appropriation to the contrary by the Buyer.
(ii) The Company shall be entitled to postpone Delivery until any payment due from the Buyer has been received (whether arising under this or any other contract), and to cancel or postpone the contract at any time in the event that the Company has reasonable doubts about the Buyer's ability or willingness to pay on the due date.
(iii) The Company reserves the right at any time at its discretion to demand security for payment before continuing with an order or delivering Goods or any instalment.
(iv) VAT will be charged at the rate ruling at the time of despatch of the Goods or, if different, the basic tax point (as defined in regulations governing VAT from time to time in force).
16. FORCE MAJEURE
(a) The provision of this Clause 16 shall apply if and to the extent that the Company is unable to carry out any provision of the contract for any reason beyond its control including (but without limitation) Act of God, legislation, war, civil commotion, fire, flood, tempest, drought, failure of power supply, lock out, strike, stoppage or other action by employees or third parties in contemplation or furtherance of any dispute or other causes beyond the control of the Company or owing to any inability to procure parts or materials required for the performance of the contract.
(b) The Company shall notify the Buyer as soon as reasonably practicable after circumstances preventing performance arise. During the continuance of such a contingency the Company may, within its absolute discretion, withhold, reduce or suspend performance of its contractual obligations, so far as prevented or hindered by such contingency, without liability to the Buyer for any loss or damage whatsoever suffered directly or indirectly by reason of any such withholding, reduction, or suspension.
17. LIMITS OF LIABILITY
(a) The Goods are supplied strictly on the terms that the Buyer has satisfied itself of their suitability for its purposes. The Buyer acknowledges that all specifications and details in catalogues, quotations and acknowledgements of order or similar documents or by word of mouth and all forecasts of performances, howsoever given, are approximate only and do not form part of the contract and that in respect of such specifications details and forecasts the Company shall be under no liability nor shall the Buyer be entitled to any remedy under the provisions of the Misrepresentation Act 1967.
(b) The Company's liability under Clause 11 & 12 shall be accepted by the Buyer in lieu of any other warranty or condition, whether express or implied by law, as to the quality or fitness for any particular purpose of the Goods and, save as provided in these Conditions, the Company shall not be under any liability to the Buyer (whether in contract, tort or otherwise) for any defects in the Goods or for any damage, loss, death or injury resulting from such defects and the Buyer shall indemnify the Company against any claims in respect thereof. For the purposes of this paragraph the Company contracts on its own behalf and on behalf of and as trustee for its sub contractors, servants and agents.
(c) The Company shall not be liable, whether by way of indemnity or by reason of breach of contract, tort or breach of statutory duty or in any other manner for consequential or indirect loss of whatever nature suffered by the Buyer or for special damages, loss of use, (whether complete or partial) of the Goods, or loss of profit or of any contract.
(d) Nothing in this Condition shall be construed as limiting or excluding the Company's liability under Part I of the Consumer Protection Act 1987 or for death or personal injury resulting from its negligence (as defined in Section 1 of the Unfair Contract Terms Act 1977).
18. NO WAIVER
No waiver of any of the Company's rights under the contract shall be effective unless in writing signed by a Director or other authorised person on behalf of the Company. A waiver shall apply only to the specific circumstances in which it is given and shall be without prejudice to the enforcement of a Company's rights in relation to different circumstances or the recurrence of similar circumstances.
19. NOTICES
Any notice under these Conditions shall be properly given if in writing and sent by first class post, telex or facsimile to the address of the intended recipient as stated in the contract or to such address as the Company and the Buyer from time to time notify to each other as their respective addresses for service and shall be deemed served in the case of postal notice, on the expiry of 48 hours from time of posting, in the case of telex on the recording of the "answer back" code on the sender's machine, and in the case of facsimile, on the expiry of 15 minutes from completion of transmission by the sender.
20. CONSTRUCTION AND JURISDICTION
English Law shall govern construction and operation of the contract and the Buyer agrees to submit to the non exclusive jurisdiction of the English Courts.
Each of these Conditions and each paragraph of such conditions shall be construed as a separate condition. Should any provision hereof be found to be invalid or unenforceable or an unreasonable restriction of the Company's liability then such provision shall apply with such modification as may be necessary to make it valid and effective.
(Revised 25th May 2001)
