1. DEFINITIONS
“The Seller” means Dudley Associates Limited
“The Purchaser” means the person firm or company to be supplied with the Goods by the Seller
“Goods” means the goods, materials and/or other items to be supplied pursuant to the Contract
“The Contract” means the contract of sale and purchase of certain goods made between the Seller and the Purchaser to which these Conditions shall apply and which shall include any order issued thereunder.
2. SCOPE
These Conditions shall prevail over any inconsistent terms or conditions referred to in the Purchaser’s order or elsewhere unless specifically agreed in writing by both parties.
3. QUOTATIONS
Quotations by the Seller shall not constitute an offer. Seller reserves the right to withdraw or amend the same at any time prior to acceptance of the
Purchaser’s order.
4. PRICES
Prices shall be those charged at the time of despatch and are exclusive of VAT. The prices payable for the Goods shall be those charged by the Seller at the time of despatch so that the Seller shall have the right at any time to revise quoted prices to take account of increases in costs including (without limitation) costs of the acquisition of raw materials and of carriage. In this case the purchaser has the right to terminate the order on giving notice to the Seller of its intention within 7 days of being advised of the increase. The price is exclusive of any applicable value added tax, such value added tax the Purchaser shall be additionally liable to pay to the Seller. The prices payable for the goods shall be those charged by the Seller at the time of despatch and shall, unless otherwise agreed by the Seller in writing, include the cost of standard delivery.
5. TERMS OF PAYMENT
Payment shall be due within 30 days of invoice unless otherwise agreed.
Subject to any special terms agreed in writing between the Purchaser and the Seller, the Seller shall be entitled to invoice the Purchaser for the price of the goods on or at any time after despatch of the Goods, unless the Goods are to be collected by the Purchaser or the Purchaser wrongly fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Purchaser for the price at any time after the Seller has notified the Purchaser that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods. The Purchaser shall pay the price of the Goods without deduction and set-off within 30 days of the date of the Seller’s invoice, unless by other prior written agreement, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Purchaser, except in the instances where mould tooling is manufactured, in this case a prepayment is required with order, the balance on issue and approval of samples. For new accounts and for accounts who exceed these limits, terms may vary and will be expressly stated. The time of payment and the price shall be of the essence of the contract.
The Seller shall have the right to charge interest on overdue accounts at the rate of 3% above Lloyds Bank plc base rate from time to time to run from the due date for payment thereof until receipt by the Seller of the full amount whether before or after judgment.
6. DELIVERY
Delivery dates are approximate only and time shall not be of the essence.
6.1 Time not being of the essence of the Contract delivery dates mentioned in any quotation or elsewhere are approximate only and not of any contractual effect. Standard delivery lead times for moulded components under normal ongoing production circumstances would be 4 to 6 weeks from receipt of order unless otherwise agreed in writing. The Seller shall not be under any liability to the Purchaser in respect of any delay in delivery howsoever arising.
6.2 In the event of the Purchaser returning or failing to accept any delivery of the Goods in accordance with the Contract the Seller shall be entitled at his option either to deliver and invoice the Purchaser for the balance of Goods then remaining undelivered or to suspend or cancel further deliveries under the Contract.
The Seller shall be entitled to store at the risk of the Purchaser any Goods which the Purchaser refused or fails to accept and the Purchaser shall pay all costs of such storage and any additional costs of carriage incurred as a result of such refusal or failure.
6.3 This contract is divisible. Each delivery made hereunder shall be deemed to arise from a separate contract and shall be invoiced separately; any invoice for a delivery shall be payable in full in accordance with the terms of payment provided for herein, without reference to and notwithstanding any defect of default in delivery of any other instalment.
6.4 The Goods shall unless delivered by the Seller’s own transport or by a carrier on behalf of the Seller be deemed to have been delivered and risk to have passed to the Purchaser upon their transfer to the carrier named by the Purchaser or (in case of delivery “ex works”) upon the Seller notifying the Purchaser that the Goods are available for collection.
6.5 In the case of the Contract or any order involving more than one delivery if default is made in payment on the due date the Seller shall have the right to suspend all or any further deliveries pending payment or to terminate the Contract in its entirety by notice in writing to the Purchaser. Where third party deliveries are required, in addition to the agreed costs, there will be a 5% surcharge (of the order value) (minimum £50) for third party deliveries and administration.
7. TITLE
Risk shall pass on delivery. Title shall pass only on payment in full.
7.1 Risk of damage to or loss of the Goods shall pass to the Purchaser:
(a) in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Purchaser that the Goods are available for collection;
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 Purchaser wrongly fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods title to the Goods shall pass to
the Purchaser upon payment in full of the invoice price and ownership of the Goods shall remain
with the Seller until the Seller has received in cleared funds payment in full of the price of the
goods and all other goods agreed to be sold by the seller to the purchaser for which payment is
then due.
Until such time as the property in the Goods passes to the Purchaser, the Purchaser shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Purchaser and third parties and properly stored, protected and insured and identified as the Seller’s property. Until that time the Purchaser 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 sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Purchaser and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
If such payment is overdue in whole or in part the Seller may without prejudice to any of its other rights recover or resell the Goods or any of the Goods and may enter upon the premises of the Purchaser or any third party where the Goods are stored by its servants or agents for that purpose.
Such payments shall become due immediately upon the commencement of any act, claim, demand or proceeding in which the solvency of the Purchaser is involved as referred to in Clause 13.1. Where a tool has remained unused for over 5 years, it is the customer’s responsibility to reclaim the tool. The tool will be recycled in the event that it goes unclaimed.
8. VARIATIONS
Quantities may vary by up to 10%.
The Seller shall be deemed to have fulfilled his contractual obligation in respect of any delivery notwithstanding the fact of the quantity delivered being up to ten per cent more or less than the quantity specified in the Contract and in such event the Purchaser shall pay for the actual quantity delivered.
9. SPECIFICATIONS BY THE PURCHASER
The Purchaser indemnifies the Seller against IP infringement claims.
9.1 The Purchaser shall indemnify and keep indemnified the Seller against all claims costs damages and expenses incurred by or for which the Seller may become liable as a result of the carrying out of any work required to be done on or to the Goods in accordance with the requirements or specifications of the Purchaser involving any infringement of any intellectual property right vested in another person firm or company.
9.2 The sale of Goods shall not by implication or otherwise convey any licence under any patent relating to the product or compositions thereof and the
Purchaser expressly assumes all risks of patent infringement by reason of the Purchaser’s use or sale of the Goods singly or in combination with other materials or in any processing operation whatsoever.
9.3 The Purchaser warrants that any design or instructions furnished or given by him shall not be such as will cause the Seller to infringe any letters patent,
registered design, trademark or trade name in the execution of the Contract.
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 Suppliers specification, which do not materially affect their quality or performance.
10. LIABILITY
10.1 The Seller shall not be liable for any shortage or defect unless a claim in writing is lodged
with the Seller:
(a) for shortages, within 30 days of delivery; and
(b) for defects, within 30 days of delivery or, where the defect was not reasonably discoverable on inspection at delivery, within 14 days of discovery or when it ought reasonably to have been discovered, and in any event no later than 3 months from delivery.
10.2 The Purchaser shall inspect the Goods on delivery and prior to any assembly, processing or re-work.
10.3 In the event of a valid claim the Seller shall, at its sole discretion, replace the Goods or make good the shortage and shall have no further liability, provided the Goods are returned carriage paid within one month of discovery.
10.4 Liability shall not exceed the invoice value of the Goods.
11. INSURANCE
The customer is responsible for insurance of tools.
12. LICENSES AND CONSENTS
If any licence or consent of any government or other authority shall be required for the purchase or importation of the Goods by the Purchaser the Purchaser shall obtain the same at its own expense and if necessary or so required produce evidence of the same to the Seller on demand.
13. FORCE MAJEURE
The Seller shall not be liable for events beyond its reasonable control.
The Seller shall not be liable to the Purchaser or deemed to be in breach of contract 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 or failure was due to any cause beyond the sellers reasonable control.
14. TERMINATION
14.1 This clause applies if
14.1.1 the Purchaser makes any voluntary arrangement with its creditors or becomes subject to any administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
14.1.2 an encumbrance takes possession, or a receiver is appointed, of any of the property or assets of the Purchaser; or
14.1.3 the Purchaser ceases, or threatens to cease, to carry on business; or
14.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Purchaser and notifies the Purchaser accordingly.
14.2 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 Purchaser, 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.
14.3 The Seller which by the Contract is understood to mean all Companies forming part of the same group of Companies as the Seller has the right to set-off any sums receivable from the Purchaser (which in this respect is also understood to mean all Companies forming part of the same group of Companies as the Purchaser) against any sums payable to the Purchaser.
15. WAIVER
The failure on the part of either party to the Contract to exercise or enforce any rights conferred by the Contract shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement thereof at any time or times thereafter.
16. NOTICES
Any notice required to be given hereunder in writing shall be deemed to have been duly given if sent by pre-paid first-class post addressed to the party concerned at its principal place of business or last known address. If the notice is sent by pre-paid first-class post, it shall be deemed to be received two days after posting.
17. HEADINGS
Headings to any of these Conditions are included to facilitate reference only and shall not affect the construction hereof.
18. SEVERABILITY
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.
19. GOVERNING LAW
This Contract shall be governed by the laws of England.
The Contract shall be governed by and construed and interpreted in accordance with the laws of England and for the purpose of settlement of any disputes arising out of or in connection with the Contract the parties hereby submit themselves to the jurisdiction of the English Courts. The statutory regulations for implementation of the convention concluded at the Hague on 1 July 1974 relating to a uniform law on the international sale of Goods shall not be applicable to this Contract.
20. SET OFF
Seller, which in this respect is also understood to mean all companies forming part of the same group of companies as the Seller, has the right to set off any sums receivable from the Purchaser, which in this respect is also understood to mean all Companies forming part of the same group of companies as Purchaser, against any sums payable to Purchaser.
