William Mellard & Sons Limited Conditions of Sale
For use in the sale of Treaty of Paris Products
In these Conditions “the Company” shall mean William Mellard and Sons Limited and/or any subsidiary company and “the Buyer” shall mean any person, firm, company or other organisation placing an order with the Company.
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 an 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 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 shall take measures it deems appropriate to guard against the consequences of such force majeure.
Unless fixed prices have 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 are subject to a delivery charge and to charges for test certificates where appropriate and are subject to the addition of VAT.
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 goods and with immediate effect whenever the change is made.
Payment is due by the end of the month following the month of despatch for Buyers holding an approved credit account. 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 National Westminster Bank PLC 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.
Where 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.
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, seven days 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 test 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 six months after receipt of the goods specifying the matters complained of and affording the Company a reasonable opportunity of inspecting the goods before making a good or replacement is undertaken.
11. Defective Goods
a. Provided that the buyer has complied with Condition 10 and subject to the provisions of Condition 12 (a), if the goods or any part thereof are defective in quality or state or (expect 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 Buer and at the Buyer’s option either:
a. 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
b. Replace the goods by delivering replacement foods 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 the 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 the 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 Birtish 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 is 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.
Goods sold as “non-prime” or goods accepted by the Buyer under Condition 11(a) which the Company and the Buyer agree to be “non-prime” are sold in their actual state as seen, without warranty and with all faults whether or not the goods have been inspected by the Buyer prior to delivery. Any statement, specification, description or other information provided by the Company in respect of such goods is given in good faith but the Company can accept no responsibility for its accuracy. In no circumstances will the Company be under any obligation to replace or make good such goods or entertain any claim whatsoever in respect thereof and the Buyer shall indemnify the Company against all claims made against it and all loses, liabilities, costs and expenses consequent thereon which arise out of loss or damage to property or injury to death of any person caused or alleged to be cause by or consequent upon supply of a product (as defined in Section 1 of the Consumer Protection Act 1987) to the Buyer as “non-prime” or any third party by the Buyer which comprises “non-prime” goods sold to the Buyer by the Company or which has a component or components or includes or is otherwise manufactures from any “non-prime” goods supplied by the Company whether or not such claim is made pursuant to the said Act. If the Buyer shall resell such goods the Buyer shall ensure that a provision in similar form to this condition is incorporated in the Contract for such resale unless prior to reselling such goods the buyer has caused the goods or such part thereof as the Buyer resells to comply with recognised specification or standard.
The risk in the goods but not the ownership shall pass to the Buyer upon 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 Buyers at the time when the loading of the goods onto 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.
15. Retention of Title and Repression
No title or property in the goods shall vest in the Buyer unless and until:
a. The Buyer makes full payment to the Company of the price of the goods or
b. The goods are incorporated in or utilised in the manufacture of products or
c. The goods are sold and delivered by the Buyer
Whichever is the earlier. Until the first of such events the Buyer shall in all respects treat and deal with the goods as the property of the Company and shall store the goods so that they are readily identifiable as the property of the Company. During such period (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) or (c) of Condition 15 has occurred without prior notice to the Buyer to re-possess, take away and re-sell the goods. For the purpose of this Condition de-coiling, cutting, slitting, punching, cold bending or re-bundling of the goods shall not constitute the manufacture of a product or products. Until the Buyer has made full payment for the goods the Buyer shall not be entitled to dispose of the goods or any right title or interest therein by sale or otherwise to the holding company of the Buyer or to any subsidiary of the Buyer or of such holding company.
Claims for non delivery, discrepancy in weight or damage must be notified in the case of goods despatched:
a. By road within seven days of despatch
b. By rail within twenty one days of despatch
All goods are sold on the basis of weighted 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. If any debt is due and payable by the Buyer to the Company but is unpaid
b. 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 Buyers contractual rights
c. If he Buyer becomes insolvent or enters into any composition or arrangement (including 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 art 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 of id the Buyer whether or not a body corporate shall carry out or be subject to any analogous act or proceedings under foreign law.
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 oragents and in conformity with which the Company is to supply the goods or is to apply any process or service in relaton to goods of the Buyer notwithstanding that the Companyu may have examined, inspected, studied or commented to the Buyer upon any such drawings specifications or other information
b. The Buyers 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 trade mark design copyright or other intellectual property or other exclusive right of any third party has been infringed.
22. Law & Jurisdiction
The Contract shall be governed by and construed in all respects in accordance with English-law. The Buyer on entering into the contract submits to the jurisdiction of the English courts. The Condition headings are inserted for convenience only and shall not affect the construction of the 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 by facsimile 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 or facsimile it shall be sufficient to show that the telex or facsimile transmission was made to the correct number. Service shall be deemed to have been effected 24 hours after despatch by post or telex or facsimile transmission