In these terms and conditions of sale:
"Company" shall mean Bridmet Limited:
"Company’s Premises" means the premises mentioned in the Company’s quotation or other contractual document or if not so mentioned means the Company’s works at (Unit G Pymore Mill, Pymore Road, Bridport, Dorset, DT6 5PJ)
"Delivery" means unless otherwise agreed in writing the collection by the Purchaser of the Goods at the Company’s Premises and/or the performance or attempted performance by the Company of the Services:
"Documentation" shall mean all drawings, calculations, computer software, data sheets, specifications, correspondence and all other documents, models or design aids which carry information relative to the Goods and/or the Services:
"Purchaser" shall mean the person, firm or company with whom the contract is made and includes the Purchaser’s successors, heirs, executors and administrators:
"Goods" means the materials, articles or equipment to be supplied by the Company to the Purchaser under these terms and conditions of sale:
"Services" means the services described in the contract (or any quotation relating to it) to be undertaken by the Company unless amended in accordance with sub-clause 2.3 below.
2. Offer and Acceptance
2.1 A quotation does not constitute an offer to supply Goods and/or Services. No contract shall arise between the parties unless and until the Company shall have accepted an offer by the Purchaser or the Company shall have accepted in writing an order in writing from the Purchaser. All contracts entered into by the Company shall be governed by these terms and conditions of sale.
2.2 The placing of an order by the Purchaser shall be subject to these terms and conditions which shall apply to the exclusion of any other provisions contained in any document issued by the Purchaser and in particular, but without prejudice to the generality of the foregoing, contained in any order sent by the Purchaser.
2.3 No modification or amendment of these terms and conditions shall be binding upon the Company unless otherwise agreed to in writing by a director of the Company.
3. Accuracy of Description of Goods and Responsibility for Statements
3.1 Subject to where the Goods are stated to be sold as complying with a recognised trade or industry standard all descriptions, specifications, drawings and particulars of weights and dimensions submitted by the Company or otherwise contained in the Company’s catalogues, brochures, price lists, quotations and other published matter are approximate only.
3.2 All statements, recommendations and advice given by the Company or the Company’s servants or agents to the Purchaser or its servants or agents as to any matter relating to the Goods and/or Services, are given without responsibility unless given in writing by an authorised officer of the Company in response to a specific written request from the Purchaser for advice before or at the time the contract is made.
3.3 The Company reserves and has the right at any time prior to Delivery to make any changes in the design or specification of the Goods and/or the Services to be performed:
3.3.1 which are required to conform with any applicable safety or other statutory requirements (in which event the Company shall be entitled to increase the price to be paid by the Purchaser for the Goods and/or Services); or
3.3.2 which the Company deems to be desirable provided that:
(i) such changes do not materially affect the performance or quality of the Goods and/or Services: and
(ii) Delivery is not unreasonably delayed by such changes: and
(iii) no price variation under the contract is made as a result of such changes unless the Purchaser shall have agreed in writing to a variation in the contract price.
4.1 Unless otherwise stated in writing the price of the Goods is exclusive of freight, carriage, packing materials, insurance, VAT and all other applicable taxes and duties.
4.2 Unless otherwise agreed in writing the price of the Goods will be the price ruling at the date of Delivery.
4.3 Unless otherwise stated in writing the Price of the Services is as stated on the face of the quotation and is exclusive of VAT and all other applicable taxes and duties.
5.1 The Company will invoice the Purchaser for all sums due under the contract on or at any time after Delivery unless the Goods are to be collected by the Purchaser or the Company is prevented from performing the Services in which event the Company shall be entitled to invoice the Purchaser for the amount due at any time after the Company has notified the Purchaser that the Goods are ready for collection or (as the case may be) the Company has tendered Delivery of the Goods and/or Services. Unless otherwise agreed in writing, payment of the price of the Goods and/or Services will be due on the last day of the month following either the date of Delivery or the date of the invoice (whichever is the earlier).
5.2 Time of payment is of the essence.
5.3 Without prejudice to any other rights of the Company hereunder if the Purchaser shall fail to give all instructions reasonably required by the Company and all necessary documents, licences, consents and authorities for delivering the Goods and/or providing the Services or shall otherwise cause or request delay the Purchaser shall in addition to the remedies available under clause 7.7 below pay to the Company all costs and expenses incurred or arising from such delay.
5.4 The Purchaser shall not be entitled to make any deduction from the price of the Goods and/or Services in respect of any set-off or counterclaim unless both the validity and the amount thereof have been expressly agreed to by the Company in writing.
5.5 If the Purchaser fails to make any payment within agreed terms, without prejudice to any other right or remedy available to the Company, the Company shall be entitled to:
5.5.1 cancel the contract or suspend any further Deliveries to the Purchaser:
5.5.2 appropriate any payment made by the Purchaser to such of the Goods and/or Services (or the goods and/or services supplied under any other contract between the Purchaser and the Company) as the Company may think fit (notwithstanding any purported appropriation by the Purchaser); and
5.5.3 charge the Purchaser interest (both before and after any judgement) on the amount unpaid, at the rate of four per cent per annum above The Bank of England’s base rate from time to time, until payment in full is made, such interest being deemed to accrue on a daily basis.
5.6 Any monies outstanding including interest charges as per sub-clause
5.5 above beyond the due date for payment shall be the subject of a reference to a debt collection agency or the like for the purposes of obtaining payment. All costs incurred by the Company (including the said agency’s fees and expenses) and all other costs in obtaining settlement shall be paid by the Purchaser.
5.7 If any part of an item of the Company’s invoice is disputed or subject to question by the Purchaser, the payment of the remainder of that invoice by the Purchaser shall not be withheld on these grounds and the provisions of sub-clause 5.5 above shall apply to such remainder and also to the disputed or questioned amount to the extent that it shall subsequently be agreed or determined to have been due to the Company.
6. Risk and Property
6.1 Risk of damage to or loss of the Goods shall pass on Delivery (or deemed Delivery ) of the Goods pursuant to clause 7 below.
6.2 Notwithstanding Delivery of, and the passing of risk in, the goods or any other provision of these terms and conditions, the property in, and legal title to, the Goods shall not pass to the Purchaser until the Company has received in cash or cleared funds payment in full of the price of the Goods (including any interest thereon due under clause 5 above) and of all or any other monies owing to the Company by the Purchaser under all contracts between the Company and the Purchaser together with any Value Added Tax payable by the Purchaser in respect of any such payment.
6.3 Until such time as the property in and legal title to the goods passes to the Purchaser the Purchaser shall:
6.3.1 hold the Goods as the Company’s fiduciary or bailee: and
6.3.2 keep the Goods separate from those of the Purchaser and third parties and keep the same properly stored, protected and clearly marked and identified as the property of the Company: and
6.3.3 insure the goods for a sum not less than the full price of the Goods (and any valued added tax in respect of the price).
6.4 Until such time as the property in the legal title to the goods passes to the Purchaser the Purchaser shall be entitled to resell or use the Goods in the ordinary course of its business.
6.5 The Purchaser shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Company but if the Purchaser does so all monies owing by the Purchaser to the Company shall (without prejudice to any other right or remedy of the Company) forthwith become due and payable.
6.6 Until such time as the property in and legal title to the Goods passes to the Purchaser (and provided the Goods are still in existence and have not been resold) the Company shall be entitled at any time to require the Purchaser to deliver up the Goods to the Company and, if the Purchaser fails to do so forthwith, to enter upon any premises of the Purchaser (or any third party where the goods are stored) and repossess the Goods and, if necessary, to sever the goods so long as they remain identifiable and retrievable from any other product land vehicle or vessel into or onto which they may have been incorporated or attached PROVIDED ALWAYS THAT nothing in the sub-clause 6.6 shall confer any right upon the purchaser to return the Goods or to refuse or delay payment therefor.
7.1 Any time or date stated for Delivery is given and intended as an estimate only and shall not be of the essence.
7.2 If the Company agrees to deliver the Goods other than at its premises delivery shall be made on:
7.2.1 the physical delivery of the Goods to the Purchaser’s carrier (or its agent) for the purpose of transmission to the Purchaser or its nominee; or
7.2.2 the physical delivery of the Goods to a good hard-road nearest to the Purchaser’s place of business or such other place as the Purchaser may direct by the Company’s carrier (or its agent), the Purchaser being responsible for unloading. Signature of any delivery by any agent, employee or representative of the Purchaser shall be conclusive proof of the delivery.
7.3 Where the contract includes delivery by the Company’s carrier or its agent:
7.3.1 any claims for non-delivery must be made in writing to the Company within ten days of invoice or advice note (whichever is the earlier);
7.3.2 any claims in respect of Goods damaged in transit or shortages in delivery must be made to the Company within seven days of delivery. Shortages in delivery shall not give rise to a right to reject the Goods delivered.
7.4 The Company shall be entitled to make partial deliveries or deliveries by instalments of the goods. Each instalment shall be a separate agreement to which all the provisions of these conditions shall apply.
7.5 The Company shall endeavour to the best of its ability to deliver the total linear requirements in the lengths ordered but reserves the right to fulfil the order in available lengths at the same price per linear metre.
7.6 In the event of any delay in Delivery the Company shall not be under any liability whatsoever to the Purchaser. The expression "liability whatsoever" in these conditions shall mean all liability of any kind including, without prejudice to the generality of the foregoing, liability in contract for negligence or under statute.
7.7 Unless the Company has otherwise agreed in writing if the Purchaser fails to take Delivery of the Goods and/or Services or if the Purchaser fails to give the Company adequate Delivery instructions at the time stated for Delivery then, without prejudice to any other right or remedy available to the Company, the Company may:
7.7.1 store the Goods until actual Delivery and charge the Purchaser for the reasonable costs (including insurance) or storage; or
7.7.2 sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Purchaser for the excess over the price under the contract or charge the Purchaser for any shortfall below the price under the contract;
7.7.3 withhold the provision of further Services due under the contract until payment is made as required under clause 5 above.
7.7.4 Shortages and defects must be notified within 7 days and thereafter the purchaser shall be deemed to have accepted the goods in all respects. Any such notice must specify the particular defect and must afford the company reasonable oppurtunity to inspect the goods in question.
8.1 If in the execution of the Services the Company has a discretion exercisable between the Purchaser and third parties, the Company shall exercise its discretion fairly
8.2 The Company shall have the right to publish descriptive articles relating to the Services with or without illustrations either on its own account or in conjunction with other parties concerned.
8.3 The Purchaser shall supply to the Company without charge and within such a time as not to delay the Company in the Execution of the Services all necessary and relevant data, information and materials in the possession or under the control of the Purchaser and the Purchaser shall give such assistance as shall reasonably be required by the Company in the execution of the Services.
8.4 The Purchaser shall give its decision on all documentation and other matters properly referred to it for decision by the Company in such reasonable time as not to delay or disrupt the execution of the Services by the Company.
8.5 The Purchaser shall facilitate the speedy granting to the Company and any of its personnel of unrestricted access to all sites and locations necessary for the execution of the Services.
8.6 The Company shall endeavour to complete the Services within the period or periods stated on the face of the quotation or as agreed in writing between the parties but time shall not be of the essence. In the event that the company is delayed or impeded in the execution of the Services by reason of the Purchaser’s failure to provide information, access, facilities or other services, which it is its duty to provide or by reason of any matters beyond the Company’s control, then the Company shall be entitled to an extension of time for completion of the Services and reasonable remuneration including overhead costs and profit consequent thereon.
8.7 The ownership and copyright in all Documentation provided by the Company shall remain with the Company, but the Purchaser shall have a licence to use such documentation and make such copies thereof as are necessary for any purpose made known to the Company in writing prior to the date of the contract.
8.8 If the documentation shall include the provision of computer software it shall be a condition precedent that prior to the provision of the same the Purchaser shall enter into a software licence agreement in the company’s current form and shall only use such software in accordance with the terms and conditions of the software licence agreement.
8.9 The Purchaser shall place on all Documentation such proprietary and copyright notices as the Company shall require.
9. Licences, duties, etc.
The Payment of all import duties, charges and assessments and the obtaining of any necessary export and import licences in respect of the Goods is the sole responsibility of the Purchaser in respect of Goods exported without the necessary export and import licences.
10. Infringement of rights
The Purchaser shall indemnify the Company against all claims, loss, damages, costs and expenses suffered by the Company or to which the Company may become liable as a result of any work done in accordance with the Purchaser’s specification(s) instruction(s) and/or requests which involves infringement or alleged infringement of any industrial or intellectual property right of any third party.
11. Force Majeure
If the Company is prevented or delayed (directly or indirectly) from making Delivery of the Goods and/or Services or any part thereof or from otherwise performing the contract or any part thereof by reason of but not limited to acts of God, war, embargo, riot(s), Strike(s), Lockout(s), trade dispute(s), fire(s), breakdown, severe weather, interruption of transport. Government action, delay in delivery to the Company of any goods or materials or by any other cause whatsoever (whether or not of like nature to those specified above) outside its control, it shall be under no liability whatsoever to the Purchaser, and shall be entitled at its option either to cancel the contract or without any liability to extend the time or times for Delivery by a period equivalent to that during which such Delivery has been prevented.
12. Guarantee and Liability
12.1 The Company will to the extent that it is able so to do pass on to the Purchaser the benefit of any warranties or guarantees given by any other manufacturer whose products/services are supplied by the Company but subject thereto the Company shall have no liability to the Purchaser in respect of any defects of whatsoever nature in the Goods or products of such other manufacturers.
12.2 The Purchaser must rely on its own skill and judgement in relation to the Goods, and the company shall, save as set out in the limited terms above be under no liability whatsoever to the Purchaser for or arising out of any defect in, failure of, or unsuitability for any purpose of the Goods or any part thereof whether the same be due to any act, omission, negligence or wilful default of design, workmanship or materials or to any other cause whatsoever. All conditions, warranties or other terms whether express or implied, statutory or otherwise, inconsistent with the provisions of the guarantees in this clause 12 are hereby expressly excluded save only to the extent (and not otherwise) that such exclusion is held by a Court of competent jurisdiction to be unfair or unreasonable.
12.3 Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions [Restrictions on Statements] Order 1975) the statutory rights of the Purchaser are not affected by these conditions.
12.4 For the avoidance of doubt and without prejudice to the generality of the above the Company accepts no liability for any consequential loss or damage or loss of profit or any contribution to the Purchaser’s overheads.
The Company reserves the right to sub-contract the performance of the contract or any part thereof.
The Purchaser shall not assign or transfer or purport to assign or transfer any contract to which these conditions apply for the benefit thereof to any other person whatsoever without the Company’s prior written consent.
15. Unfair Contract Terms Act
15.1 Nothing in these conditions shall:
15.1.1 purport to exclude or restrict such implied warranties or conditions as are in law incapable of exclusion or restriction:
15.1.2 purport to exclude or restrict any liability which the Company may otherwise have for death or personal injuries arising out of the negligence or breach of contract of the Company. The conditions contain exclusion and restriction clauses. To the extent that they are required by law to comply with any test of fairness or reasonableness the Company will contend that they do so comply.
15.2 If any provision 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.
16.1 If the Purchaser:
16.1.1 has not made the payment as provided in these terms and conditions within 14 days after the due dates and such default has not been corrected within 14 calendar days after a notice thereof has been given by the Company: or
16.1.2 commits some other breach of the terms and conditions and fails within 14 days of receipt of a notice from the Company to rectify such breach: or
16.1.3 becomes bankrupt or insolvent, has a receiving order made against him, or compounds with his creditors, or carries on business under a receiver, trustee or manager for the benefit of his creditors or goes into liquidation: or
16.1.4 ceases, or threatens to cease, to carry on business the Company may, without prejudice to any other rights or powers available to the Company, terminate its engagement under the contract by notice in writing to the Purchaser.
16.2 In the event of the Company terminating its engagement under subclause 16.1 the Company shall be entitled to receive payment: payment for all work executed and all costs and expenses including overhead costs and profit incurred in executing the Services, up to the date of the termination notice.
17. Proper Law
All Contracts made between the Company and the Purchaser shall be governed by English Law and the Purchaser shall submit to the exclusive jurisdiction of the English Law.