ELTHAM WELDING SUPPLIES LTD - TERMS OF BUSINESS
Unless otherwise agreed by Eltham Welding Supplies Limited (“the Company”) in a document signed by a duly authorised officer of the Company, these conditions shall apply to every contract for the supply of goods or services by the Company to any customer (“the Buyer”) to the exclusion of any term contrary to or inconsistent with these terms wheresoever contained.
The details of goods and prices in the Company’s catalogue and leaflets are not an offer by the Company to supply those goods at the prices stated therein or at all. Any order received from the Buyer will be accepted at the price prevailing at the date of and shown on the Company’s invoice. Price lists and Specifications may be altered or withdrawn at any time without notice. All prices are subject to Value Added Tax at the appropriate rate.
No order for goods or services accepted by the Company shall be cancelled in any circumstances without the Company’s express written agreement signed by a duly authorised officer of the Company.
3. Transfer of property
(a) The ownership of all goods supplied by the Company shall remain with the Company until such time as all the sums owed to the Company by the Buyer (whether in respect of such goods or otherwise) have been paid;
(b) The Buyer shall have the authority to use such goods, sell such goods and pass the property in the same to third parties in the normal course of its business until otherwise notified by the Company or until the happening of any of the events set out in Clause 3(g) below, but the proceeds of resale and/or the claim(s) to such proceeds will be the Company’s until such time as all sums owed to the Company by the Buyer whether in respect of such goods or otherwise have been paid;
(c) The Buyer shall have authority in the normal course of its business until otherwise notified by the Company or until the happening of any of the events set out in Clause 3(g) below to convert such goods into other products or to admix such goods with other goods to make other products but the ownership of the Company’s goods shall still remain with the Company, and such other products until they are sold by the Buyer shall be the Company’s and held for the Company until all sums owed to the Company by the Buyer whether in respect of such goods or otherwise have been paid;
(d) The Buyer shall have the authority to sell such products and pass the property in the same to third parties in the normal course of its business and until otherwise notified by the Company or the happening of any of the events set out in Clause 3(g) below, but the proceeds of sale and/or the claim(s) to such proceeds will be held for the Company until such time as all sums owing to the Company by the Buyer by virtue of these terms or otherwise have been paid;
(e) The Company shall be entitled at any time whilst any monies due or owing to the Company from the Buyer by virtue of these conditions or otherwise are outstanding to give notice to the Buyer of its intention to retake possession of its goods;
(f) On receipt of such notice from the Company or on happening of any of the events set out in Clause 3(g) below each authority of the Buyer set out in Clauses 3(b) and 3(d) (inclusive) above shall be withdrawn and all proceeds of sale received by the Buyer from sales of the Company’s goods and/or such other products made prior to the withdrawal of authority shall be paid by the Buyer into a bank account separate from all other monies of the Buyer and held in such account for the Company and all goods or products which are the property of the Company shall be immediately delivered by the Buyer to the Company, and the Company by its servants or agents shall have the right to enter upon the land or buildings of the Buyer to take possession of its goods and products. Further, even if goods supplied to the Buyer by the Company or products made therefrom have been fixed to the realty of the Buyer the Company shall have the right to enter upon the land or buildings of the Buyer to take possession of the same where but for fixing of the same to such realty such goods or products would have remained the Company’s property under the provisions of this condition;
(g) The events hereinbefore referred to are:
(i) the appointment of a receiver or a receiver and manager over the Buyer or the whole or any part of its assets or undertaking;
(ii) the presentation of a petition to wind up the Buyer or the passing of a resolution to wind up the Buyer (save for the purposes of reconstruction or amalgamation);
(iii) a decision by the Buyer that the Buyer intends to make an arrangement with its creditors;
(iv) any act (on the part of the Buyer) of bankruptcy as defined by Section 1 of the Bankruptcy Act 1914.
The price of the goods supplied by the Company shall be due and payable on delivery. Without prejudice to the generality of this clause the Company may in its discretion extend to certain buyers terms of credit such that payment (subject to the Buyer not exceeding and agreed limit) shall be due and payable 30 days from date of invoice. Once payment for goods has become due and payable the Company shall be entitled to sue for the price of such goods even though the ownership of such goods remains with the Company.
(a) Time for delivery is not of the essence of the contract unless such is expressly agreed in a document signed by a duly authorised officer of the Company. In the absence of such express written agreement, if delivery dates are quoted, these are estimates only. Accordingly, in the absence of such express written agreement the Company shall not be liable to the Buyer for any loss resulting from late delivery. Unless otherwise specified, prices include the cost of delivery to the Buyer within the Company’s van delivery area full details of which are available on request. In all other cases, delivery costs shall be borne by the Buyer.
(b) Goods which are delivered to the Buyer by the Company otherwise than at the Company’s place of business which are damaged in transit or not delivered in accordance with the Company’s advice note shall be repaired or replaced as necessary by the Company PROVIDED THAT the Buyer must give to the Company written notice of such damage or non-delivery within 7 days of receipt of the Company’s advice note or such time as will enable the Company to comply with the carrier’s conditions of carriage (whichever shall be the shorter).
(c) Notwithstanding paragraph (b) above if it is alleged by the Buyer that short delivery has occurred the Buyer must give details of such allegation within 2 working days of receipt of the goods together with such information as is required by the Company to identify the alleged shortage including the advice note number case number and condition of packing.
6. Passing of risk
Risk shall pass to the Buyer on delivery.
7. Drawings, illustrations etc.
Drawings, illustrations, descriptive matter, weights, dimensions and shipping specifications submitted to the Buyer and the descriptions and illustrations contained in the Company’s catalogue, price-lists and other advertising material are approximate and are intended merely to present a general idea of the goods described therein and do not constitute any sale a sale by description. Accordingly, there is no representation, condition or other term that goods supplied by the Company will correspond with any such drawings, illustrations, descriptive matter, weights, dimensions, shipping specifications, descriptions and illustrations and Section 13 of the Sale of Goods Act 1979 shall be excluded from applying in respect of such drawings, illustrations, descriptive matter, weights, dimensions, shipping specifications, descriptions and illustrations. The only descriptions or illustrations with which goods supplied by the Company shall comply are those specified as being of contractual significance in a document signed by a duly authorised officer of the company or in a notice of writing given by the Buyer to the Company prior to the time of contracting.
Goods will not be supplied “on approval”. If after delivery the Buyer wishes to return goods, the Company may (in its absolute discretion) accept the return of items usually held in its stock provided that they are returned promptly carriage paid and in a new condition. In such a case the price paid for such items will be refunded by the Company less a handling charge.
9. Fitness for purpose and merchantable quality
(a) There is no condition, warranty or other term or representation that goods are supplied by the Company are fit for any particular purpose save insofar as such goods are supplied by the Company pursuant to a written request from the Buyer to the Company to supply goods for a particular purpose in which case, unless the contrary is agreed in writing between the Company and the Buyer, there shall be a warranty that such goods are reasonably fit for that purpose and if such goods are not reasonably fit for that purpose the Company shall replace them with goods which are reasonably fit for that purpose or (at the Company’s instance) alter such goods so that they become reasonably fit for that purpose and, to the extent permitted by statute, the Company shall be under no further or other liability or obligation with regard to goods which are not fit for any particular purpose.
(b) The condition implied by Section 14(2) of the Sale of Goods Act 1979 shall apply to all sales of goods by the Company save that (except to the extent prohibited by statute) the Company’s only liability in respect of goods supplied by it which are not of merchantable quality shall be to replace such goods with goods which are of merchantable quality or (at the Company’s instance) to alter such goods so that they become of merchantable quality and the Company shall have no further or other liability with regard to goods which are not of merchantable quality.
(c) Notwithstanding the foregoing, (save to the extent prohibited by statute) the Company shall not be liable (whether pursuant to paragraph (a) or (b) above or otherwise) for any fault or defect in goods supplied by the Company which fault or defect can be remedied under the manufacturer’s warranty or guarantee, unless and until the Buyer’s remedies under that warranty or guarantee are exhausted or excluded.
For the sake of certainty and clarity, the Company shall not be liable and the Buyer shall not have any remedy in respect of any representation or statement made by or on behalf of the Company unless such representation or statement shall have been incorporated in a document signed by a duly authorised officer of the Company or in a notice in writing given to the Company by the Buyer prior to the time of contracting that the Buyer proposes to contract on the basis of such representation or statement.
11. Consequential Loss
Save to the extent prohibited by statute, the Company shall not be liable for consequential loss of any kind whatsoever.
12. Duly Authorised Officers
For the purposes of these terms a “duly authorised officer” of the Company means the Purchasing Manager, the Financial Manager or the Managing Director.
The headings herein shall be ignored in construing these terms.
14. Legal construction
Any contract entered into by the Company shall in all respects be governed by English law and subject to the exclusive jurisdiction of the English Courts.