Terms and Conditions
Buyer - means the person who accepts the quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller.
Goods - means the Goods and services (including any installment of the Goods or any parts for them) which the Seller is to supply in accordance with these conditions.
Seller - means Apuljack Engineering Ltd., The Granary, The Stables Business Park, Rooksbridge, Somerset, BS26 2TT
Conditions - means the standard Terms and Conditions of Sale set out in this document and (unless the context otherwise requires) includes a special Terms and Conditions agreed in writing between the Buyer and Seller.
Contract - means the Contract for the purchase and sale of the Goods.
Intellectual Property - means all copyright patent design right and rights of a like nature in the Goods and in all drawings and other documents or recordings in any form of and relating to the Goods or bearing or embodying any part of the Technical Information.
Technical Information - means all know how experience drawings designs circuit diagrams computer programs and all other Technical Information relating to the Goods or any process involved in the manufacture or supply of the Goods including but without prejudice to the generality of the foregoing all plates dyes and other tooling components used by the Seller in the manufacture of Goods.
2. BASIS OF THE SALE
2.1 The seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer or any written order of the Buyer which is accepted by the Seller subject in either case to these conditions which will govern the Contract to the exclusion of any other Terms and Conditions subject to which any such quotation is accepted or purported to be accepted or any such order is made or purported to be made by the Buyer.
2.2 The quantity quality and description of any specification for the Goods shall be those set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
2.3 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 profit) costs (including the cost of all labour and materials used) damages charges and expenses incurred by the Seller as a result of cancellation.
2.4 If the Goods are manufactured or any process is to be applied to the Goods by the Seller in accordance with the specifications submitted by the Buyer, the Buyer shall indemnify the Seller against all loss damage costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller 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 Seller’s use of the Buyer’s specification.
3. PRICE OF GOODS
3.1 The price of the Goods shall be the Seller’s quoted price where no price had been quoted (or a quoted price is no longer valid) the price listed in the Seller’s published price list current at the date of the acceptance of the order.
3.2 The Seller reserves the right by giving notice to the Buyer at any time before delivery to increase the price of the Goods to reflect an increase in the manufacturing and repair costs to the Seller.
3.3 The price is exclusive of any applicable Value Added Tax which the Buyer shall be additionally liable to pay the Seller.
4. TERMS OF PAYMENT
4.1 Subject to any special Terms agreed in writing between the Buyer and Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods at the point of order or at any time after delivery of the Goods unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which case the Seller shall be entitled to invoice the Buyer for the Goods at any time after the Seller has notified the Buyer that the Goods are ready for collection, or, (as the case may be) the Seller has tendered delivery of the Goods.
4.2 The Buyer shall pay the price of the Goods without deduction within 30 days of the date of the Seller’s Invoice, notwithstanding that delivery may not have taken place and the property and the goods is not part of the Buyer. The time of payment of the price shall be at the essence of the Contract.
4.3 If the Buyer failed 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 (a) cancel the Contract or suspend any further deliveries to the Buyer, (b) appropriate any payment made by the Buyer to such of the Goods (or to the Goods supplied under any other Contract between the buyer and the Seller), as the Seller may think fit, and (c) charge to the Buyer interest on the amount unpaid at the rate of 2% per annum above Barclays Bank PLC base rate from time to time in force until payment in full is made.
5.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises at any time after the Seller has notified the Buyer and the Goods are ready for collection or, if some other place of delivery is agreed by the Seller, by the Seller delivering Goods to that place.
5.2 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. Goods may be delivered by the Seller in advance, quoting a delivery date upon giving reasonable notice to the Buyer.
5.3 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions, the time stated for delivery then without prejudice to any other right and remedy available to the Seller, the Seller may (a) store the Goods until actual delivery and charge the Buyer for reasonable costs, including insurance for storage; or (b) sell the Goods at the best price readily obtainable and (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.
6. RISK AND PROPERTY
6.1 Risk of damage to, or loss of the Goods shall pass to the Buyer; (a) in the case of Goods to be collected from the Seller’s premises at the time when the Seller notifies the Buyer that the Goods are available for collections; or(b) in the case of Goods to be delivered otherwise than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller or its agent has tendered delivery of the Goods.
6.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property and the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds, payment in full of the price of the Goods and all other Goods agreed to be sold by the Seller to the Buyer for which payment is then due.
6.3 Until such time as the property and the Goods passes to the Buyer, (and provided the Goods are still in existence and have not be resold) the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller, and the Buyer fails to do so forthwith, to enter up on the premises of the Buyer, or any Third Party where the Goods are stored and repossess the Goods.
6.4 Should the Buyer alter the Goods by subjecting them to any manufacturing process or incorporating them into another product or mixing them in any way the Seller will own the resulting product (hereinafter called “the Altered Goods”) until payment due under all Contracts between the Seller and the Buyer has been made in full and all the Seller’s rights under these Terms and Conditions shall extend to the Altered Goods.
7. WARRANTIES AND LIABILITY
7.1 Subject as expressly provided in these conditions and except where the Goods are sold to the person dealing as a Consumer (within the meaning of the Unfair Contract Terms Act 1977) all Warranties, Conditions or other Terms implied by Statute or Common Law are excluded to the fullest extent permitted by law.
7.2 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within seven days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within the reasonable time after discovery of the defect or failure. If delivery is not refused and the Buyer does not notify the Seller accordingly the Buyer shall not be entitled to reject the Goods and the Seller shall have not liability for such defect or failure, the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the contract.
7.3 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion refund to the Buyer the price of the Goods (or a proportionate part of the price) but the Seller shall have no further liability to the Buyer.
7.4 Except in respect of death or personal injury caused by the Seller’s negligence the Seller shall not be liable to the Buyer by reason of any representation or any implied Warranty, Conditions or other Term or any duty at Common Law, or under the express Terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise) costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its Agent or otherwise) which arise out of or in connection with the supply of the Goods for their use or resale by the Buyer, except as expressly provided in the conditions.
7.5 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contact by reason of any delay in performing or any failure to perform any of the Seller’s obligations in relation to the Goods if the delay in performing or any failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the Seller’s reasonable control;
(a) Acts of God, explosion, flood, tempest, fire or accident;
(b) war, or threat of war, sabotage, insurrection, civil disturbance or requisition;
(c) acts, restriction, regulations, bylaws, prohibitions or measures of any kind on the part of any Governmental, Parliamentary or Local Authority;
(d) import or export regulations or embargoes;
(e) strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or a Third party);
(f) difficulties in obtaining raw materials, labour, fuel, parts of machinery;
(g) power failure, internet failure or breakdown in machinery.
7.6 Where the Seller incurs any liability whether by Court proceedings or bona fide out of Court settlement as a result of a claim against the Seller in respect of an alleged defect in the Goods then the Buyer shall indemnify the Seller against such liability.
7.7 (a) All stated Warranties on works carried out for Repairs and
Upgrades are not transferable by the Buyer.
(b) All stated Warranties on Goods and Items for Sale are not transferable by the Buyer.
(c) The Buyer is responsible for the Sending and Return of Goods under Warranty for works to be carried out for Repair and Upgrade.(i.e. pays the Postage and Packaging cost or Delivers the Goods.)
7.7 (a) All stated Warranties on works carried out for Repairs and
Upgrades are not transferable by the Buyer.
8.1 The Buyer agrees to maintain secret and confidential all Technical Information obtained from the Seller pursuant to the Contract and prior to and in contemplation of it and all other information as it may acquire from the Seller in the course of this Contract and to respect the Seller’s proprietary rights therein.
8.2 Notwithstanding the foregoing provision the Buyer and any sub-licensee shall be entitled to disclose Technical Information of the Seller to actual or potential customers for the Altered Goods in so far as such disclosure is reasonably necessary to promote the sale or use of the Altered Goods.
8.3 Save where the Buyer supplies its own specific patent or drawings for the Goods, Intellectual Property (whether the design of the Goods is commissioned or not) shall belong to the Seller.
9. INSOLVENCY OF BUYER
9.1 This cause applies if:
(i) the Buyer makes any voluntary arrangement with its Creditors or becomes subject to an Administration Order or (being an individual firm) becomes bankrupt or (being a Company) goes into liquidation otherwise than for the purposes of amalgamation or reconstruction; or
(ii) an incumbrancer takes possession or a Receiver is appointed, of any of the property or assets of the Buyer: or
(iii) the Buyer ceases, or threatens to cease, to carry on business; or
(iv) the Seller reasonably apprehends in any events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
9.2 If this Clause applies then without prejudice to any other right or remedy available to the Seller, 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.
The Contract shall be governed by the Laws of England.
11. EXPORT TERMS
11.1 Where the Goods are supplied for export from the United Kingdom the provisions for this Clause shall (subject to any special Terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other Provision of these Conditions.
11.2 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.
11.3 Unless otherwise agreed in writing between the Buyer and the Seller the Goods shall be delivered FOB ("Free On Board" - sale considered complete and shipping costs are responsibility of buyers) the air or sea port of shipment and the Seller is under no obligation to give notice under Section 32(3) of the Sales of Goods Act 1979.
11.4 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 is apparent on inspection and which is made after shipment or in respect of any damage during transit.
11.5 Payment of all amounts due to the Seller shall be made be irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by a Bank in England acceptable to the Seller, or, if the Seller has agreed in writing on or before acceptance of the Buyer’s order to waive this requirement, by acceptance of the Buyer and delivery to the Seller, of a Bill of Exchange drawn on the Buyer and payable sixty days after sight to the order of the Seller at such branch of Barclays Bank in England as may be specified in the Bill of Exchange.
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