TERMS AND CONDITIONS OF SALE
All reference in these conditions to the Contract is the Contract between us, Thick Film Accessories Ltd, and the purchaser for the sale and purchase of the goods in accordance with the Conditions
(a) These conditions apply to the Contract to the exclusion of any other terms that the Purchaser seeks to impose or incorporate or which are implied by trade, custom, practice or course of dealing.
(b)Insofar as they may be excluded all other liabilities, conditions, guarantees, warranties, terms, undertakings and representations, express or implied statutory or otherwise, are hereby expressly excluded and unless previously agreed in writing by an authorised officer (i) no verbal, written or other addition hereto or variation or waiver hereof shall be effective and (ii) in the event of any conflict or inconsistency between these conditions and the terms of any order these conditions shall prevail to the fullest extent permitted by law. Without prejudice to any other term of these conditions the giving of any delivery instructions, the acceptance of or payment for any products or any conduct in confirmation of the transaction hereby contemplated shall constitute unqualified acceptance by the purchaser of these Conditions.
Any quotation is not an offer to supply goods. Any quotation given is open 30 days from its date. The order by the purchaser constitutes an offer to purchase the goods in accordance with this condition. These conditions will be supplied with all quotations and upon request. The purchaser is responsible for ensuring that the terms of the order and any applicable specifications are complete and accurate and suitable for purpose. The order shall only be deemed to be accepted when we issue a written acceptance of the order or dispatch the products pursuant to the purchaser’s order, the Contract will come into existence upon the first to incur of the forgoing. The Contract constitutes the entire agreement between the parties. The purchaser acknowledges that it has not relied upon any statement, promise or representation made or given by on or behalf which is not in writing and expressly signed by an authorised officer of Thick Film Accessories Ltd. The purchaser’s order for the goods may be the purchaser’s written acceptance of our quotation or delivery of the purchaser’s own order form or completion of our order form.
All prices and quotations are subject to adjustment without prior notice on the basis of the precious metal market price prevailing on the date dispatched.
Prices are based on the cost of materials, labour, transport, duties, levies, currency exchange rates and statutory obligations ruling at the date of quotation and if, before delivery of all of the products there occurs any increase in any of such costs which are out of our control, the price payable may be increased to allow for such variations. We shall also be entitled to increase such price in the event of any error or omission on the part of us, our servants or agents affecting it or its calculation. Upon the receipt of notice of a price increase after the date of quotation the Buyer may cancel an order as to all or any part of the goods. The Buyer must give written notice of such a cancellation within five days of the notice of a change in price, subject in all instances, to Seller’s policies as they exist from time to time with respect to minimum quantities for goods of the type covered by the order.
In the event that work is varied as a result of the purchaser’s request we shall be at liberty to vary the contract price to take account of any additional work.
If no price is quoted to the purchaser, the price set out in the seller’s published price list as at the date of delivery shall prevail.
The purchaser shall pay to us in addition to the contract price a sum equal to the value added tax chargeable in respect of the value of the supply of products and/or services.
We shall be under no liability nor shall the purchaser be entitled to any remedy by reason of the Misrepresentation Act 1967 except to the extent (if any) that the Court or any arbitrator may allow reliance on it as being fair and reasonable.
We undertake to make every endeavour to adhere to our delivery schedule. Such schedule is not, however, guaranteed or to be deemed to be of the essence of the contract and we shall in no case be liable for any delay in delivery or any losses resulting directly or indirectly therefrom howsoever caused and any delay in delivery shall not be sufficient cause for cancellation by the purchaser save where the delay is in excess of 30 days beyond the estimated date for delivery and the delay has not arisen as a consequence of any force majeure or any act or omission of the customer.
Delivery shall mean "delivery ex-Works, unpacked” all prices are exclusive of any additional charges whether in respect of packing, insurance, shipping carriage, taxes or duties or otherwise howsoever all of which shall be for the purchaser's account.
6. PASSING OF TITLE (a) The title in the products shall remain in us until the payment of the total price thereof and any other payments due to us from the purchaser have been received in full in cash or cleared funds.
(b) If payment of the total price or other sums is not made on the due date we shall have the right with or without prior notice at any time to retake possession of the whole or any part of the products or any act or process has been commenced in relation to the purchaser which would indicate that it is insolvent within the meaning of the Insolvency Act 1986 or that its position (financial or otherwise) has deteriorated to such an extent that in the seller’s opinion the purchaser’s capability to adequately fulfil its obligations and other Contract has been placed in jeopardy (and for that purpose to go upon any premises occupied by the purchaser thereof) without prejudice to any of our other remedies. c) Until title to the product has passed to the purchaser, the purchaser shall hold the products on a fiduciary basis as the seller’s agent separate from all goods held so that they may be readily identifiable as the seller’s property, but the purchaser may resell or use the product in the ordinary course of its business.
7. TRANSFER OF RISK AND INSURANCE
The risk in the products shall pass to the purchaser upon their delivery to carriers for transportation to the purchaser or, where carriage is effected by us, upon dispatch of the products so that we shall be under no liability whatsoever for any loss or damage or deterioration of the products caused or arising either during transit or at any other time after the risk has passed to the purchaser and the purchaser should therefore be insured accordingly.
8. ACCEPTANCE OF ORDER
The purchaser’s order must be accompanied by all information instructions and drawings necessary to enable us to proceed with the execution thereof.
9. ACCEPTANCE OF GOODS
Unless within fourteen days from date of delivery or deemed delivery we are notified in writing to the contrary products shall be deemed to have been accepted by the purchaser as being in good condition and in accordance with the Contract.
10. TERMS OF PAYMENT (a) Unless otherwise expressly stated, payment for the products shall be made net on or before the thirtieth day ("the due date") after the date of the invoice relating thereto which shall be issued on the date of dispatch of the products by us.
(b) If full payment is not received by the due date:
(i) Interest shall be payable by the purchaser from the due date on the unpaid amount on a daily basis at the statutory rate payable under the Late Payment of Commercial Debts (interest) Act 1988.
(ii) We shall have the right to suspend any further deliveries under the particular contract or any other contract or verbally accepted order until payment is made in full and in addition shall have the right to cancel the particular contract in relation to such further deliveries and any other contract or verbally accepted order and no time or indulgence granted by us to the purchaser shall prejudice any right or remedy which we may have in any manner whatsoever.
(c) No deduction shall be made by either party in respect of any set-off or counter-claim howsoever arising.
If there is any default or breach of any of the purchaser's obligations hereunder or in payments due to us under any contract whatsoever or if any distress, execution or other legal process shall be levied upon or served out against the purchaser's property or assets or if any petition or receiving order shall be presented or made against the purchaser or if the purchaser is a company, any resolution or petition to wind it up shall be passed or presented, or if a receiver of all or any of its assets shall be appointed, then (without prejudice to other remedies) in each and every such case we shall have the right at any time to determine the contract and to cancel any outstanding delivery and to stop any products in transit and, notwithstanding any other provisions, payment in respect of any delivery already made shall be immediately due.
12. FORCE MAJEURE
Every effort will be made to carry out any contract based on this quotation but if we are prevented (directly or indirectly) from making delivery of the products, or performing or completing any of our obligations hereunder by reason of acts of God, war, strikes, lockouts, trade disputes, or other industrial action, fires, droughts, floods, explosions, breakdowns, interruption of transport, refusal of licence, Government or administrative action, delays in delivery to us or increase in the price of any products or materials, any statute rule regulation order requisition recommendation or directive of any Government council or other authority or body, or any cause whatsoever (whether or not of the like nature to those specified above) outside our control, we shall be under no liability whatsoever to the purchaser, and shall be entitled at our option (to be notified to the purchaser in writing) either to cancel the contract whereupon we shall be relieved of all liabilities hereunder or to extend the time of its performance by a period equivalent to that during which performance by us has been prevented by the circumstances hereinbefore referred to.
We undertake to replace or (at our option) repair free of charge or refund or credit the value of any of the products which within three months of the date of our invoice therefore are found by us to be defective by reason solely of faulty workmanship or the use of defective materials, provided that (i) we receive notification of the claim as soon as reasonably possible and in any event within four months of the date of our invoice and (ii) if we so request the products which are the subject of the claim are returned carriage paid to us for inspection. We will have no liability pursuant to this guarantee if the defects in the products have arisen as a result of any act or omission of the customer or anyone outside of our express and direct control.
14. EXCLUSION OF LIABILITY (a) The above guarantee is given by us and accepted by the purchaser in substitution for any rights which the purchaser might otherwise have: - (i) By reason of any express or implied representation, condition, warranty or otherwise as to (A) the description, merchantability, quality, fitness, performance, correspondence with sample and non-infringement of patents of the products;
(B) The standard of the Company's workmanship and the description, merchantability, fitness or performance or any materials or technical assistance supplied in connection therewith all such representation, conditions and warranties, express or implied, being hereby expressly excluded to the fullest extent permitted by law.
(ii) In negligence or otherwise in tort arising out of or in connection with the supply of any products or materials or technical information or assistance relating thereto, to or to the order of, the purchaser or the execution of any work for the purchaser and all such liability whatsoever howsoever arising is hereby expressly excluded provided that nothing in this condition shall excuse us from any liability which we may incur from death or personal injury resulting from the negligence of our servants or agents (save to the extent that the same could have been avoided by the purchaser's ensuring the due compliance of itself and its servants and agents with all due safety precautions relating to the possession and use of the products and in particular those precautions set out in our product literature).
(b) Except for any such liability in respect of death or personal injury (save as aforesaid), fraud, fraudulent misrepresentation, breach of section 12 of the Sale of Goods Act or any other liability which it would be unlawful to exclude, we shall not be liable in any manner whatsoever whether in contract, tort, misrepresentation or otherwise beyond the terms of the above guarantee and in particular shall not be liable for any indirect or consequential loss, loss of profit, goodwill, business, business opportunity or reputation, damage or injury howsoever or by whomsoever caused which may arise out of, or in connection with the supply of products or materials or technical information or assistance to the order of the purchaser or the execution of work for the purchaser.
(c) If any of these terms and conditions or any part of any of them is rendered void by any legislation to which it is subject, it shall be void to that extent and no further; if any one of these terms and conditions or any part of any one of them is rendered unenforceable by legislation to which it is subjected, it shall be unenforceable to the extent that it is shown by the purchaser that it would not be fair or reasonable to allow reliance on it and no further.
(d) In the event that any exclusion of liability in this clause 16 shall be void or unenforceable then the Company’s liability shall (other than in the case of death or personal injury) be limited to twice the price of the products paid by the purchaser in respect of which the liability arises.
15. SUITABILITY, PERFORMANCE AND MODIFICATIONS
You assume responsibility that products stipulated by you are sufficient and suitable for your purposes and you accept responsibility for ensuring compliance with all safety precautions and recommendations in relation to the use of the products which appear in our information literature.
All particulars given by us relating to technical performance dimensions capacity output consumption and weight of any products and all Illustrations descriptions specifications and drawings are given as accurately as possible but are approximate only and all such material contained in brochures, catalogues, price lists, and other advertising matter is intended merely to present a general idea of the products described therein and none of such material shall form part of the contract and products may vary slightly.
Every effort is made to ensure that the latest specification and design are available and we reserve the right to incorporate changes in design construction composition materials arrangement or equipment as we shall think fit without notifying the purchaser and to supply products which may not be in strict accordance with the agreed specification.
We shall retain the exclusive property and reserve the copyright in all documents supplied or produced to you in connection with any contract or tender and it shall be a condition of such supply or production that the contents of such documents or any part thereof shall not be communicated either directly or indirectly to any other person, firm or company without our prior written consent. All communications in connection with any Contract or intended Contract and all arrangements for the inspection of products and/or facilities shall be regarded as strictly confidential between us and shall not be divulged to any other person firm or company without our prior written consent.
The purchaser agrees to indemnify us against all demands claims damages charges liabilities costs and expenses which may be incurred or sustained by us by reason of or arising directly or indirectly out of any third party claims or rights or otherwise howsoever in respect of any products manufactured or services supplied in accordance with any specification design information equipment or instruction given by or on behalf of the purchaser and whether relating to the infringement or the alleged infringement of a Patent Copyright Registered Design or other protected industrial right or property or otherwise howsoever.
18. DESIGN RIGHTS
The property in the design of the products covered by the Contract shall subject to any existing rights of any third party in any design or invention incorporated or used in the design of the products, remain exclusively our property and neither the purchaser nor any agent contract or other person authorised by the purchaser nor any other person firm company shall at any time make use of the design or any part thereof.
(a) If any provision of these terms and conditions (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of this agreement, and the validity and enforceability of the other provisions of this agreement shall not be affected.
(b) If a provision of these terms and conditions (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable OR the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties' original commercial intention.
20. NON ASSIGNABILITY
Any contract made with the purchaser shall be non-assignable by the purchaser and in the event of the purchaser purporting to assign the benefit of any such contract without the prior written consent of ourselves or in the event of the beneficial ownership of no more than 50% of the issued ordinary capital of the purchaser being transferred subsequent to the making of the contract we shall have the right by notice in writing to determine the contract and to cancel any outstanding delivery to stop any product in transit and notwithstanding any other provisions payment in respect of any delivery already made shall be immediately due to us provided always that we shall not unreasonably refuse consent to an assignment to a parent or subsidiary or co-subsidiary company of the purchaser, and following any such permitted assignment the provisions of this clause shall apply mutatis mutandis to any such change in the ownership of the assignee company.
The contract shall in all respects be construed and operate as an English contract and in conformity with English law and products shall not be required to comply with the provisions of any other law.