1.1.The following conditions shall apply to all Contracts of Sale for the supply of goods and services by Sheerframe Limited (company number 09276899), (the Company), to the purchaser (the Buyer), to the entire exclusion of any promises, and representations or other express or implied conditions including any terms or conditions which the Buyer may purport to apply under any purchase order, confirmation of order or similar document.
2.1. A contract shall only be concluded upon the Company’s written acceptance of the Buyer’s order on our official Acknowledgement of Order form.
3.1. No variation to these conditions shall be binding, unless agreed in writing by an authorised representative of the Company.
4.1. The price of the goods shall be the Company’s quoted price. However the Company reserves the right to vary the prices quoted, at any time prior to delivery of the goods, upon giving written advice to the Buyer. The Company undertakes, to hold any further production or delivery of the goods, until the Buyer confirms acceptance of the revised price. If the Buyer does not accept the revised price, it must nevertheless pay for all goods already produced, or partially manufactured, and all raw materials purchased to produce such goods, and all pre-production development stages, at the price previously prevailing.
4.2. All prices are exclusive of Value Added Tax or any similar taxes levies or duties, which will be added to or charged on invoices at the appropriate rates.
5.1. In the event of the Buyer cancelling the order, otherwise, than by reason of a notified price increase, or in any way preventing the Company from supplying the goods, the Buyer shall pay the Company the full contract price of the goods, where such goods have already been manufactured, and in all other cases, the Buyer shall pay the Company for all losses incurred, in respect of such cancelled order, including any pre-production development stages and partial manufacturing.
5.2. The Buyer shall be required to give at least four weeks notice of any intention to vary any previously agreed schedule of deliveries relating to bulk orders.
Where such notice has not been given, the Buyer shall pay the Company for those quantities manufactured by the Company, in anticipation of the previously agreed schedule of deliveries.
6.1. Any date named by the Company for despatch or delivery, is given and intended as an estimate only, and is not a term of the contract between the Company and the Buyer. Accordingly the Company cannot accept liability whatsoever in respect of delivery of the goods, after the estimated delivery date.
6.2. Notwithstanding any delay in delivery (and unless otherwise agreed in writing by the Company and the Buyer), the Buyer shall nevertheless be bound to accept delivery of the goods when available and to pay for them in full, provided that, the delivery shall be tendered at any times, within one month of the estimated delivery date. The Company shall be entitled to store the goods (or any of them), at the Buyers expense, at its own premises or elsewhere, if the Buyer fails to accept delivery of the goods.
6.3. The Buyer shall be responsible to the Company for ensuring the accuracy of the terms of its order and where drawings, specifications, instructions and materials are to be supplied by the Buyer, the Buyer shall supply the same in reasonable time to enable the Company to despatch within the period named.
6.4. Where the goods are to be delivered in instalments, each delivery shall constitute a separate contract, and failure by the Company 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 for all the goods repudiated. Where goods are delivered by instalments the Company may invoice each instalment separately.
6.5 The Company allows a strict maximum of 30 minutes for each UK delivery, failing which the Buyer will not receive the order; see the Company’s Shipping Policy for more details.
6.6 It is Company policy that its driver does not leave the rear of his vehicle during unloading. Therefore the Buyer should provide assistance for off loading, ie. forklift or two able bodied persons.
6.7 Without prejudice to clause 5.2 the Company will endeavour to comply with reasonable requests by the Buyer for postponement of delivery but shall be under no obligation to do so. When delivery is postponed otherwise than due to default by the Company the Buyer shall pay all costs and expenses including a charge of 15% of the total value of the order for transportation and/or storage or restocking occasioned thereby and the Company shall be entitled to invoice the goods in accordance with these conditions. The Company also reserves the right to levy a charge for labour costs incurred in cleaning and or repackaging returned goods
7. SHORTAGES DAMAGE AND/OR LOSS IN TRANSIT
7.1. The buyer must advise the Company and the Carrier as follows:-
7.1.1 Non - delivery of whole or any separate part of consignment -within fourteen days of date of despatch has been notified.
7.1.2. Partial loss or damage - by telephone within 72 hours and confirmation in writing within 7 days of the date of delivery.
In the case of partial loss or damage, the receipt of the goods by the Buyer must be qualified with a remark to that effect. In the case of partial loss of goods, the Buyer shall not be entitled to reject that consignment but shall be entitled to a further delivery of goods to make up that deficiency or (at the Company’s option), a refund of the appropriate part of the price.
7.2. The Company’s responsibility for the goods ceases upon delivery. Once delivery of the goods is made, the goods so delivered, shall be deemed to be in accordance with all Contractual Terms, unless the Buyer can prove that any alleged damage or defect, notified under the above provisions, was present upon delivery, or that the alleged damage or defect was not discoverable by reasonable examination..
7.3. The Company shall not be responsible for non-delivery, partial loss or damage unless the Buyer complies with this condition 7.
8.1. The Company warrants, that the goods shall, at the time of delivery be free from defects in workmanship and materials. If any goods do not conform to this warranty the Company will at its option:-
8.1.1. replace the goods found not to conform to the warranty.
8.1.2. take such steps as the Company deems necessary to bring the goods into a state where they are free from such defect; or
8.1.3. take back the goods found not to conform to the warranty and refund the appropriate part of the purchase price.
Provided that the liability of the Company shall, in no event, exceed the purchase price of the goods, and performance of any one of the above options, shall constitute an entire discharge of the Company’s liability under this warranty.
8.2. The foregoing warranty is conditional upon:-
8.2.1. the Buyer giving written notice to the Company, of the alleged defect in the goods, in accordance with condition 7, and in any event, within 90 days of delivery of the goods: and
8.2.2. the Buyer affording the Company a reasonable opportunity to inspect the goods, and, if so requested by the Company, returning the allegedly defective goods to the Company’s works, carriage pre-paid, for inspection to take place there; and
8.2.3. the goods not having been altered in any way whatsoever and not having been subjected to misuse or unauthorised repair; and
8.2.4. the goods having been properly installed and connected (unless the Company carried out such installation and connection); and
8.2.5. the Buyer complying with its obligations under this or any other contract made with the Company.
8.2.6 the use of the goods only in the “Serviced Regions”. In Europe the Serviced Regions are Belgium, France, Denmark, Germany, Estonia, Finland, Great Britain, Ireland, Iceland, Latvia, Lithuania, Luxembourg, Netherlands, Norway, Poland, European part of Russia, Sweden, Slovakia and Czech Republic. New Zealand is also in the Serviced Regions. Please discuss your requirements with the Company before ordering Goods. The goods are only suitable and intended for use in the Serviced Regions and should not be used or resold for use outside the Serviced Regions8.3. Save as provided in Condition 8.1 and in Section 12 of the Sale of Goods Act 1979:-
8.3.1. All conditions and warranties, express or implied, as to quality or fitness for any purpose of the goods are hereby expressly excluded; and
8.3.2. The Company shall be under no liability for any loss or damage (whether direct, indirect or consequential) howsoever arising, which may be suffered by the Buyer (other than in respect of death or personal injury resulting from the Company’s negligence.
8.4. In the event that, notwithstanding the foregoing provisions of this condition, the seller is found liable for any loss or damage suffered by the Buyer, that liability shall in no event exceed the purchase price of the goods, (other than in respect of death or personal injury resulting from the Company’s negligence).
8.5. The foregoing provisions of this Condition shall not apply to sales which are made to persons who deal as consumers (as that expression is defined in Section 12 of the Unfair Contract Terms Act 1977), unless the contract is an international supply contract (as described in Section 26 of the Act).
8.6 Nothing in these Conditions shall be deemed to exclude or restrict the Company's liability for fraudulent misrepresentation or for death or personal injury resulting from the Company's negligence, or any liability for breach of the Company's implied undertaking as to title
9. TERMS OF PAYMENT
9.1. Except where otherwise stated in writing by the Company to the Buyer, all prices quoted are strictly nett, and payment in full is due by the end of the month following that which delivery of the goods takes place. However if default is made in the payment of any one invoice these credit terms shall cease to apply and the Buyer will become immediately liable for all sums outstanding.
9.2. The buyer shall not withhold payment for the goods delivered by reason of any alleged set-off or Counterclaim.
10. INTEREST ON UNPAID ACCOUNTS
10.1 Should the buyer fail to make payment on the date under the foregoing Terms of Payment, the buyer shall be liable to pay the Company interest, at the rate of interest pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 , subsisting during the period of such default as well after as before any judgement.
11. OWNERSHIP AND RISK
11.1. The risk in the goods shall pass to the Buyer upon delivery, but ownership of the goods supplied shall remain with the Company, until payment in full has been received for all goods an services supplied to the Buyer (whether under this or any other contract).
11.2. Any use of the goods shall, as between the parties, be deemed to be in order of the despatch. At any time whilst ownership of the goods remain with the Company, the Company may without prejudice to any of its other rights, recover and/or resell any of the goods and may enter the Buyers premises for the purpose of so doing.
11.3. Until ownership of the goods passes to the Buyer:-
11.3.1 it shall store such goods in its possession, in a manner so that they are clearly identifiable as the goods of the Company, and so that the Company can identify which invoice was issued in respect of such goods;
11.3.2 In the event of the appointment of an administrator over the Buyer or a receiver over any of the Buyer's assets then it is acknowledged that none of the goods shall be sold or agreed to be sold by the administrator/receiver, without the Company’s prior written consent or (where relevant) a prior court order having been obtained;
11.3.3 the Buyer shall take all reasonable precautions to protect the goods from damage or loss arising from any cause;]
11.3.4 In the event of a sale of the goods by the Buyer in the ordinary course of its business to a third party the Buyer shall assign to the Company in writing its rights to recover the selling price from the third party concerned if the Company so requires; and
11.3.5 pending disposal the Buyer shall keep the goods insured in the amount of the price at which the goods are sold to the Buyer against all insurable risks.
11.4 The Buyer shall at all times be in possession of the goods, as bailee of the Company and as its fiduciary agent, and any sale by the Buyer shall be on commercially reasonable terms(but not as agent of the Company). The Buyer shall account for all proceeds tangible and intangible including insurance proceeds. Any tangible proceeds shall be held as Trustee for the Company.
11.5. The Buyer shall not be entitled to pledge or in any way charge, by way of security for any indebtedness in any of the goods which remain the property of the Company, but if the Buyer does so, all monies owing by the Buyer to the Company, shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
11.6. If the Buyer fails to pay for the goods in accordance with these conditions, the Company shall have the right to bring action against the Buyer, for the price of the goods at any time, notwithstanding that property in the goods has not passed to the Buyer. In addition, if default is made by the Buyer in the payment of any one invoice any credit terms previously enjoyed by the Buyer (if any) shall cease to apply and the Buyer will become immediately liable for all sums outstanding to the Company under any contract.
11.7 Any implied right to sell the goods in the ordinary course of business shall terminate on the occurrence of any of the events set out in conditions 18.1.2 to 18.1.5 inclusive.
12.1. The Company will have the power to appropriate payments to such goods and accounts as it thinks fit, notwithstanding any purported appropriation by the Buyer to the contrary.
13.1 (Home Market)
Carriage will be paid by the Company on orders totalling over £500 (VAT excluded) save for request for special deliveries. Carriage on orders under £500 or for special deliveries (VAT excluded), will be charged to the buyer at cost.
Delivery Free Alongside Ship U.K. Port, will be paid by the Company unless otherwise stated in writing and the Company shall be under no obligation to give notice under Section 32(3) of the Sale of Goods Act 1979.
14. PACKAGING (Home Market)
14.1. Reels, boxes, cases and pallets are chargeable and non-returnable. Steel stillages are also chargeable but will be credited in full if returned in good condition.
15. PATENTS AND REGISTERED DESIGNS AND OTHER RIGHTS
15.1. All industrial property rights relating to the goods, their manufacture and/or installation and all rights in respect of their design, including copyright in all drawings thereof, shall vest in and remain exclusively with the Company.
15.2. The Buyer shall indemnify the Company against all damages, penalties costs and expenses, to which the Company may become liable, arising from work done or products supplied, to the order or specification of the Buyer, which involve infringement or alleged infringements of any industrial property rights of third parties.
15.3 The supply of goods by the Company shall not confer any right upon the Buyer to use any of the Company's trade marks (except in the re-sale of goods in the packaging supplied by the Company).
16. NEW TOOLING
16.1. Dies and moulds when required, will not be placed on our production schedule until signed approved drawings and payments, of the appropriate deposit, are received by the Company.
16.2. The tooling costs specified in the Company’s quotation, represent only partial costs, and any payment of such costs, shall only entitle the Buyer, to require the use of such tools in the Company’s factory. The payment of part tooling costs, does not in any way constitute a purchase of the tools, the ownership of the tools resting with the Company.
17. VARIATIONS IN QUANTITY
17.1 The Buyer shall take delivery of the goods tendered, notwithstanding that the quantity so delivered shall be either greater or less than the quantity ordered provided that::-
17.1.1. such discrepancy in quantity shall not exceed 10%.
17.1.2. the order price shall be adjusted pro rata to the discrepancy.
18.1. The Company may rescind the contract for the goods, or suspend any further deliveries to the Buyer without incurring any liability to the Buyer if:-
18.1.1 the Buyer fails to make any payment owing to the Company on the due date or fails to take delivery of goods; or
18.1.2. the Buyer makes any voluntary arrangement with its creditors, or (being an individual or firm) becomes bankrupt, or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction), or becomes subject to an administration order; or
18.1.3. an encumbrancer takes possession, or receiver is appointed, of any of the property or assets of the Buyer; or
18.1.4 the Buyer ceases, or threatens to cease to carry on business; or
18.1.5 the Company reasonably apprehends, that any of the events mentioned above, is about to occur in relation to the Buyer and notifies the Buyer accordingly.
19.1 The information contained in the advertising sales and technical literature issued by the Company may be relied upon to be accurate in the exact circumstances in which it is expressed otherwise any illustrations performance details examples of installations and methods of assembly and all other technical data in such literature are based on experience and from trials under test conditions. Accordingly the information contained in the Company's publications is provided for general guidance only and forms no part of the contract unless expressly agreed in writing. Buyers should obtain specific recommendations and advice from the Company regarding the uses and attributes of the Company's goods.
19.3 In the event that the Company agrees (at the Buyer’s cost) to provide a member of staff to attend on site during installation of a [structure], then the role of such person is to provide outline guidance only on erection of [structures]. For the purposes of clarification the Company shall not be responsible for the quality of construction/assembly or for any other element of the structure or foundations.
19.4 The Buyer shall indemnify the Company on demand against any costs charges losses or expenses including legal fees which the Company may sustain or incur as a consequence of any failure by the Buyer promptly and properly to perform its obligations hereunder
19.5 The Buyer shall indemnity the Company against any damages losses costs claims or expenses suffered or incurred by the Company in respect of any claim brought against the Company by any third party for any loss injury or damage wholly or partly caused by the goods or the use of any container other than for storage of the goods. Any loss injury or damage suffered as a result of a failure on the part of the Buyer or any third party to use handle or deal with the goods in a safe and proper manner and in accordance with all applicable regulations and all procedures recommended by the Company. Nothing in this clause will require the Buyer to indemnify the Company against any liability to the extent that this arises as a result of the Company's own negligence.
19.6 No waiver by the Company of any breach of the contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision of this or any other contract.
19.7 If any of the provisions of these conditions is held by any competent authority to be invalid or unenforceable 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.
19.8 The Buyer shall not assign or transfer any of its rights benefits or obligations under the contract (save with the prior written consent of the Company).
19.9 A person who is not a party to the contract has no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these terms and conditions but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
19.10 If the Company is prevented (directly or indirectly) from making delivery of any goods by reason of force majeure (as hereinafter defined) the Company shall be under no liability whatsoever to the Customer nor shall the Company be deemed to be in breach of the contract by reason of any delay in performing or failure to perform any of its obligations in relation to the goods, and the Company shall have the right at its absolute discretion to allocate such deliveries as it is able to make, between deliveries pursuant to the contract, and deliveries pursuant to any other contract with any third party.
19.11 The following shall be regarded as force majeure:
Act of God, explosion, flood, tempest, fire, accident, war, threat of war, sabotage, insurrection, civil disturbance, government requisition, acts, restrictions, regulations, bye-laws, prohibitions, or measures of any kind, on the part of any governmental, parliamentary, or local authority; import or export regulations, or embargoes, strikes, lock-outs, or other industrial actions, or trade disputes, shortages of raw materials, labour, fuel or parts of machinery, power failure, or breakdown in machinery, including tooling and die failure unavailability of the use of public or private telecommunications networks and any other cause whatsoever beyond the Company’s reasonable control.
19.12 Any notice or other communication to be given under this agreement shall be in the English language and may be delivered in writing by hand or sent by pre-paid first-class post or fax to the party to be served at that party's registered office or last-known trading address and (in relation to the Company) marked for the attention of the ‘Head of Customer Services’. A notice shall be deemed to have been served, if by hand when delivered, if by facsimile when transmitted, and if by first class post 48 hours after posting
19.13The contract is governed by the Laws of England, and the Company and the Buyer hereby submit to the non-exclusive jurisdiction of the English Courts, as regard any claim or matter arising under it.
Firs Works, Nether Heage, Derby DE56 2JJ Tel: 01773 852311 Fax: 01773 857080 Registration No: 9276899 England Registered office as above.