Terms & Conditions
Armeg Ltd – Standard Terms & Conditions of Sale
1.1 In these Conditions the following words have the following meanings:
‘the Buyer’ - the person(s), firm or company who purchases the Goods from the Seller;
‘the Seller’ - Armeg Limited, Callywhite lane, Dronfield S18 2XJ;
‘Contract’ - any contract between the Seller and the Buyer for the sale and purchase of the Goods, incorporating these conditions;
‘Goods’ - any Goods agreed in the Contract to be supplied to the Buyer by the Seller (including any part or parts of them).
1.2 In these Conditions, references to any statutory provision shall, unless the contract otherwise requires, be construed as a reference to that statute or statutory provision as from time to time amended, consolidated, modified, extended, re-enacted or replaced.
1.3 In these Conditions headings will not affect the construction of these Conditions.
2. APPLICATION OF THE TERMS
2.1 Where the Seller is not the manufacturer of the Goods, the Seller will endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Seller.
2.2 The Contract will be on these Conditions to the exclusion of all other terms and conditions (including any terms and conditions which the Buyer purports to apply under any purchase order, confirmation of order specification or other document). This contract contains all the representations of the Seller. Any variations to these Conditions shall have no effect unless expressly agreed in writing and signed by a director of the Seller.
2.3 Any typographical, clerical, or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2.4 The Buyer acknowledges that the Seller shall not be liable for any advice concerning the storage or use of the Goods unless such advice is confirmed in writing by the Seller.
3. ORDERS AND SPECIFICATIONS
3.1 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.2 If the Goods are to be manufactured by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trademark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
3.3 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable safety or other statutory requirements or where the Goods are to be supplied to the Seller’s specifications which do not materially affect their quality or performance.
3.4 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs including the cost of all labour and materials used, damages, charges and expenses incurred by the Seller as a result of cancellation.
4. PRICE OF THE GOODS
4.1 Unless otherwise agreed in writing the price of the Goods shall be the price listed in the Seller’s published price list, current at the date of acceptance of the order.
4.2 Except as otherwise stated in any price list of the Seller or agreed in writing between the Buyer and the Seller, all prices are given by the Seller on an ex works basis and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the Seller’s charges for transport and insurance.
4.3 The price is exclusive of any applicable value added tax which the Buyer shall be additionally liable to pay to the Seller.
5. TERMS OF PAYMENT
5.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Good unless the Goods are to be collected by the Buyer, or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after notification (whether oral or written) by the Seller that the Goods are ready for collection or, (as the case may be), the Seller has tendered delivery of the Goods.
5.2 The Buyer shall pay the price of the Goods without deduction within 30 days of the end of the month in which falls the date of the Seller’s invoice, not withstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.3.1 cancel the Contract or suspend any further deliveries to the Buyer and/or to cancel or suspend deliveries under any contract with the Buyer without any liability on the Seller for such cancellation or suspension;
5.3.2 appropriate any payment made by the Buyer to such of the Goods (or the Goods supplied under any other contract with the Buyer) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer; and
5.3.3 charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of four per cent per annum above HSBC Bank base rate from time to time until payment in full is made (a part of the month being treated as a full month for the purpose of calculating interest);
5.3.4 require immediate payment of the price of any Goods delivered under any other contract with the Buyer notwithstanding that payment has not yet become due in accordance with the terms of such contract.
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time during normal office hours after the Seller has notified the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller by the Seller delivering the Goods to that place.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 Where the Goods have been manufactured to the Buyer’s specification the Seller reserves the right to deliver up to 10 per cent more or 10 per cent less than the quantity ordered with consequent adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered.
6.4 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions, or any claim by the Buyer in respect of any one or more instalments, shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.5 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods PROVIDED that the Seller shall have no liability under this Clause unless the Buyer notifies the Seller of the non-delivery in writing within 7 days of the scheduled date of delivery, or, if later within 7 days of the date of the Seller’s invoice to the Buyer in respect of the Goods.
6.6 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault), then without prejudice to any other right or remedy available to the Seller the Seller may:
6.6.1 store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.6.2 sell the Goods at the best price readily obtainable (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7. RISK AND PROPERTY
7.1 Risk of damage to, or loss of, the Goods shall pass to the Buyer:
7.1.1 in the case of the Goods to be delivered otherwise than at the Seller’s premises, at the time when the Buyer collects the Goods; or
7.1.2 in the case of Goods to be delivered otherwise than at the Sellers premises, at the time of delivery or if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2 The ownership of the Goods shall remain with the seller until such time as all sums owing to the Seller, whether under this contract or any other contract, have been paid.
7.3 Until such time:
7.3.1 the Buyer shall hold the Goods as the Sellers fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property;
7.3.2 the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business but shall account to the Seller for the proceeds of the sale of the Goods or insurance proceeds and shall keep all such proceeds separate from any monies or property of the Buyer;
7.3.3 provided the Goods have not been resold the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and if the Buyer fails to do so forthwith to enter upon any premises of the Buyer and repossess the Goods.
8.1 The Seller warrants that (subject to the other provisions of these Conditions) upon delivery (and for a period of (12) months from the date of delivery,) the Goods will materially correspond with their specification and be free from defects in material and workmanship.
8.2 The Seller shall not be liable for a breach of the warranty in Condition 8.1 unless the Buyer gives written notice of the defect to the Seller, and (if the defect is as a result of damage in transit) to the carrier, within 7 days of the delivery date or, where the defect or failure is not apparent on reasonable inspection, within 7 days of the time when the Buyer discovers or ought to have discovered the defect (and in any event within (3) month(s); and
8.3 The Seller shall not be liable for a breach of the warranty in condition 8.1 if:
8.3.1 the Buyer makes any further use of such Goods after giving such notice; or
8.3.2 the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or
8.3.3 the Buyer alters or repairs such Goods without the written consent of the Seller;
8.3.4 the defect arises from any drawing, design or specification supplied by the Buyer;
8.3.5 The total price for the Goods has not been paid by the due date for payment.
8.4 Subject to Conditions 8.2 and 8.3, if any of the Goods do not conform with the warranty in condition 8.1, the Seller shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Seller so requests, the Buyer shall, at the Buyer’s expense, return the Goods or the part of the Goods which is defective to the Seller. Having done so, the Seller shall have no further liability for the breach of the warranty in condition 8.1 in respect of such Goods.
8.5 Any Goods replaced will belong to the Seller and any repaired or replacement Goods will be guaranteed on these terms for the unexpired portion of the (12) month period.
9. LIMITATION OF LIABILITY
9.1 Subject to condition 8, the following provisions set out the entire liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) in respect of:
9.1.1 any breach of these Conditions; and
9.1.2 any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
9.2 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Contract.
9.3 Nothing in these Conditions excludes or limits the liability of the Seller for death or personal injury caused by the Seller’s negligence or that of its employees. THE BUYERS ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF CONDITION 9.4.
9.4 Subject to Conditions 8, 9.2 and 9.3:
9.4.1 The Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise, arising in connection with this Contract shall be limited to (125% of the contract price); and
9.4.2 the Seller shall not be liable to the Buyer for any indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever which arise out of or in connection with the Contract.
10. FORCE MAJEURE
10.1 The Seller reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from, or delayed in, the carrying on of its business due to circumstances beyond the reasonable control of the Seller including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to obtaining supplies of adequate or suitable materials provided that, if the event in question continues for a continuous period in excess of (180) days, the Buyer shall be entitled to give notice to the Seller to terminate the Contract.
11. RETURN OF GOODS
11.1 The Buyer shall not be entitled to return any Goods (‘the Returned Goods’) to the Seller for credit unless:
11.1.1 The price of the Returned Goods has been paid in full and they are in their original packaging and the invoice(s) relating to them are identified and notified to the Seller;
11.1.2 the Seller has given its prior consent in writing to the return of such Goods on such conditions as it sees fit;
11.1.3 the Buyer is not in default under any other contract between the Seller and the Buyer.
11.2 Subject to any conditions imposed by the Seller under 9.1.2 above, the price (as invoiced) of the Returned Goods, less than the Seller’s costs (if any) of carriage and insurance and 15% of the price for handling and administration shall be set off by the Seller against any sums then due or to become due from the Buyer to the Seller and the Seller shall not otherwise be obliged to refund to the Buyer the whole or any part of the price of the Returned Goods.
12. INSOLVENCY OF THE BUYER
12.1 This clause applies if:
12.1.1 the Buyer makes or applies any voluntary arrangement with its creditors or to an administration order or (being an individual or firm) becomes bankrupt or (being a company) passes a resolution or suffers a petition to be made for its winding-up or goes into liquidation; or
12.1.2 an encumbrancer takes possession or a receiver or administrative receiver is appointed of any of the assets of the Buyer; or
12.1.3 the Buyer ceases or threatens to cease to carry on business; or
12.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer.
12.2 If this clause applies, then without prejudice to any of the Seller’s other rights, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer and if the Goods have been delivered but not paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
13.1 In these conditions ‘Incoterms’ means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms, shall have the same meaning in these Conditions and each Contract, but if there is any conflict between the provisions of Incoterms and these conditions, the latter shall prevail.
13.2 Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 2 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply not withstanding any other provisions of these Conditions.
13.3 Unless otherwise agreed in writing, the Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties thereon.
13.4 Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered by the Seller Ex-Works. If by agreement, the Goods are to be delivered FOB, the place of delivery shall be the air or sea port of shipment and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979.
13.5 The Buyer shall be responsible for arranging for testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection which is made after shipment or in respect of any damage during transit.
13.6 Unless otherwise agreed in writing, payment of amounts due to the Seller shall be made by irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by a bank in England acceptable to the Seller.
14.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing, addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time, have been notified pursuant to this provision to the party giving the notice.
14.2 No waiver by the Seller, of any breach of Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
14.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceables, in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
14.4 Any reference to any provisions of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
14.5 The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by English law and the parties to the exclusive jurisdiction of the English courts.