PROTEAM UK LIMITED - TERMS OF SALE
1. DEFINITIONS
In these Terms of Sale the following meanings shall apply:
“We” and “Us” means PROTEAM UK LIMITED. “You” means the person
seeking to purchase Goods from Us. “the Goods” means the goods or where the
context permits the services to be supplied by Us. “Company Signatory” means
a person authorised by Us. “the Terms” means the terms set out in this document
and any special terms agreed in writing between a Company Signatory and You.
“the Contract” means the contract for the supply of Goods incorporating these
Terms. “Consumer” means any natural person acting for purposes outside their
trade, business or profession. “the Defect” means the condition and/or any
attribute of the Goods and/or any other circumstances which but for the effect
of these Terms would have entitled You to damages.
2. THE CONTRACT
2.1 All orders are accepted by Us only under these Terms and they may not
be altered other than with the written agreement of a Company Signatory. Any
contrary or additional terms unless so agreed are excluded.
2.2 Quotations are invitations to treat only.
2.3 Orders may be cancelled only with the written agreement of a Company
Signatory and You will indemnify Us against all costs claims losses or expenses
incurred as a result of that cancellation.
2.4 You shall be responsible to Us for ensuring the accuracy of the terms of
any order including any applicable design drawing or specification provided to Us
by You and for giving Us any necessary information relating to the Goods within
a sufficient time to enable Us to perform the Contract in accordance with its
Terms.
2.5
2.5.1 It is Your responsibility to be fully conversant with the nature and
performance of the Goods.
2.5.2 Without prejudice to Clause 2.5.4 of these Terms while We take every
precaution in the preparation of our catalogues technical circulars price lists and
other literature these documents are for your general guidance only and
statements included in these documents (in the absence of fraud on our part)
shall not constitute representations by Us and We shall not be bound by them.
2.5.3 If You require advice including Health and Safety information in relation to
the Goods a specific request for advice should be made and any advice given in
writing by a Company Signatory in response to such a request shall amount to a
representation and We shall be liable accordingly.
2.5.4 We shall not be liable in respect of any misrepresentation made by Us our
employees or agents to You your employees or agents as to the condition of the
Goods their fitness for any purpose or as to quantity or measurements unless the
representation is:
2.5.4.1 made or confirmed in writing by a Company Signatory; and/or
2.5.4.2 fraudulent.
2.5.5 For the avoidance of doubt our liability for damages for misrepresentation
(other than fraudulent) is excluded or limited by Clause 8 of these Terms.
3. PRICE
3.1 The price of the Goods shall be exclusive of VAT which shall be due at the
rate ruling on the date of a VAT invoice.
3.2 Prices listed or quoted are based on costs prevailing at the time when they
are given or agreed. We shall be entitled to adjust the price of the Goods as at
the time of delivery by such amount as may be necessary to cover any increase
sustained by Us after the date of acceptance of your order and any direct or
indirect costs of making obtaining handling or supplying the Goods.
3.3 Prices listed or quoted are applicable to the quantity specified and on the
information provided by You at the time of order. In the event of orders being
placed for lesser quantities or if there is any change in specifications, delivery
dates, or delay is caused by your instructions or lack of instructions we shall be
entitled to adjust the price of the Goods as ordered to take account of
the variations.
4. PAYMENT
4.1 Unless the sale is for cash or other credit terms have been agreed in
writing with a Company Signatory all accounts are due for payment on the last
day of the month following the month in which the Goods are delivered.
4.2 Late payments will incur interest at the rate of 8% per annum above the
base rate of Barclays Bank Plc in force from time to time from the due date until
the date of payment after as well as before judgement.
4.3 Credit facilities may be withdrawn or reduced at any time in our
sole discretion.
4.4 Even if We have previously agreed to give You credit we reserve the right
to refuse to execute any order or contract if the arrangements for payment or
your credit rating is not satisfactory to Us. In our discretion We may require
security satisfactory to Us or payment for each consignment when it is available
and before it is despatched in which case delivery will not be effected until We
are in receipt of security or cleared funds as requested by Us.
4.5 In the case of short delivery You will remain liable to pay the full invoice
price of all Goods delivered or available for delivery.
4.6 You may not withhold payment of any invoice or other amount due to Us
by reason of any right of set off or counterclaim which You may have or allege to
have for any reason whatever.
4.7 We shall be entitled at all times to set off any debt or claim of whatever
nature which We may have against You against any sums due from Us to You.
5. DELIVERY
5.1 Delivery will be affected when the Goods leave our premises whether
carried by Us or an independent carrier or the premises of our suppliers when the
Goods are delivered direct from suppliers.
5.2 Delivery dates are given in good faith but are estimates only.
5.3 Time for delivery shall not be of the essence of the Contract.
5.4 For the avoidance of doubt and without detracting from any other
provisions of these Terms We shall not be liable for any damages whatsoever
whether direct or indirect (including for the avoidance of doubt any liability to any
third party) resulting from any delay in delivery of the Goods or failure to deliver
the Goods in a reasonable time whether such delay or failure is caused by our
negligence or otherwise howsoever.
5.5 We reserve the right to make delivery by instalments and tender a
separate invoice in respect of each instalment. Our failure to deliver any one or
more instalments or any claim by You in respect of any one or more instalments
shall not entitle You to treat the Contract as a whole as repudiated.
5.6 The price agreed includes our normal delivery charges but We may make
an additional charge if We incur further costs or expense such as (but not limited
to) those caused by delivery of less than a full load; complying with your request
for delivery outside our normal delivery pattern or trading hours or by instalments;
orders of small value which are not economical for us to deliver free.
5.7 You must provide the necessary labour for unloading the Goods and
unloading is to be completed with reasonable speed. If our delivery vehicle is kept
waiting for an unreasonable time or is obliged to return without completing
delivery or if We provide additional staff to unload Goods an additional charge will
be made.
5.8 If You fail to take delivery accept or collect the Goods within the agreed
time in our discretion We may make an additional charge, invoice You for the
Goods or treat the contract as repudiated and in any case recover our losses
from You.
5.9 If You collect Goods from Us You are solely responsible for the size weight
and positioning of the load on the vehicle and shall indemnify Us in respect of all
costs claims losses or expenses We may incur as a result of your collecting the
Goods including any resulting from our negligence.
5.10 If the Goods are to be deposited other than on your private premises You
shall be responsible for compliance with all regulations and for all steps which
need to be taken for the protection at all times of persons or property.
5.11 You will indemnify Us in respect of all costs claims losses or expenses We
may incur as a result of delivery in accordance with your instructions. This
indemnity will be reduced in proportion to the extent that such costs claims losses
or expenses are due to our negligence.
6. INSPECTION
6.1 You shall inspect the Goods at the place and time of unloading or
collection but nothing in these Terms shall require You to break packaging
and/or unpack Goods which are intended to be stored before use.
6.2
6.2.1 You must advise Us by telephone immediately and give Us written notice
within twenty four hours of unloading of any claim for short delivery.
6.2.2 If You do not give Us that notice within that time the Goods will be deemed
to have been delivered in the quantities shown in the delivery documents.
6.2.3 You shall not be entitled and irrevocably and unconditionally waive any
right to reject the Goods or claim any damages whatsoever for short delivery
howsoever caused.
6.2.4 Our liability for short delivery is limited to making good the shortage.
6.3
6.3.1 Where it is or would have been apparent on a reasonable inspection that
the Goods are not in conformity with the Contract or (where the Contract is a
contract for sale by sample) that the bulk does not compare with the sample You
must advise Us by telephone immediately and give us written notice within three
working days of inspection.
6.3.2 If You fail to give Us that notice within that time the Goods will be deemed
to have been accepted and You shall not be entitled and irrevocably and
unconditionally waive any right to reject the Goods.
6.3.3 If You fail to give Us that notice within that time Clause 8 shall have effect.
7. TITLE AND RISK
7.1 Risk in the Goods shall pass to You when the Goods are delivered.
7.2 The property in the Goods shall remain with Us until You pay all sums
due to Us whether in respect of this Contract or otherwise.
7.3 Until title passes:-
7.3.1 You shall hold the Goods as our fiduciary agent and bailee.
7.3.2 The Goods shall be stored separately from any other goods and You
shall not interfere with any identification marks labels batch numbers or serial
numbers on the Goods.
7.3.3 We agree that You may use or agree to sell the Goods as principal and
not as our agents in the ordinary course of your business subject to the express
condition that at our direction the entire proceeds of any sale or insurance
proceeds received in respect of the Goods are held in trust for Us and not
mixed with any other monies or paid into an overdrawn bank account and shall
at all times be identifiable as our money.
7.4 We shall be entitled at any time to recover any or all of the Goods in your
possession to which We have title and for that purpose We our employees or
agents may with such transport as is necessary enter upon any premises
occupied by You or to which You have access and where the Goods may be or
are believed to be situated.
8. LIABILITIES
8.1 Nothing in these Terms shall exclude or restrict our liability for death or
personal injury resulting from our negligence or our liability for fraudulent
misrepresentation.
8.2 Subject to Clause 8.1 of these Terms We shall not be liable by reason
of any misrepresentation (unless fraudulent) or any breach of warranty
condition or other term express or implied or any breach of duty (common law
or statutory) or negligence for any damages whatsoever, instead of liability in
damages We undertake liability under Clause 8.3 below.
8.3 Where but for the effect of Clause 8.2 of these Terms You would have
been entitled to damages against Us We shall not be liable to pay damages but
subject to the conditions set out in Clause 8.4 below shall in our sole discretion
either repair the Goods at our own expense or supply replacement Goods free
of charge or refund all (or where appropriate part) of the price paid for the
relevant Goods.
8.4 We will not be liable under Clause 8.3:
8.4.1 if the Defect arises from fair wear and fear
8.4.2 if the Defect arises from wilful damage negligence abnormal working
conditions misuse alteration or repair of the Goods failure to follow British
Standard or industry instructions relevant to the Goods or storage of the Goods
in unsuitable conditions (but this sub-clause shall not apply to any act or
omission on our part)
8.4.3 unless after discovery of the Defect we are given a reasonable
opportunity to inspect the Goods before they are used or in any way interfered
with. For the avoidance of doubt We acknowledge that the costs of suspending
works are relevant to the determination of what is a reasonable opportunity and
this sub-clause shall not apply to any works affecting the Goods which it may
be reasonably necessary to carry out in the interests of safety and/or as
emergency measures
8.4.4 if the Defect would have been apparent on a reasonable inspection
under Clause 6.1 of these Terms at the time of unloading unless You advise
Us by telephone immediately and written notice of any claim is given to Us
within three working days of the time of unloading; or in any other case
8.4.5 the Defect is discovered within four months from the date of delivery
and We are given written notice of the Defect within three working days of it
being discovered.
8.5 If the Goods are not manufactured by Us or have been processed or
milled by a third party whether or not at our or your request our liability in
respect of any defect in workmanship or materials of the Goods will be limited
to such rights against the manufacturer or the third party as We may have in
respect of those Goods.
8.6 If the Goods are manufactured processed or milled by Us to the design
quantity measurement or specification of You or your agents then:
8.6.1 Subject to Clause 8.1 of these Terms We shall not be under any liability
for damages whatsoever or under Clause 8.3 of these Terms as the case may
be except in the event of:
8.6.1.1 fraudulent misrepresentation
8.6.1.2 misrepresentation where the representation was made or confirmed
in writing by a Company Signatory
8.6.1.3 non-compliance with such design quantity measurement
or specification
8.6.1.4 breach of a written warranty signed by a Company Signatory that
the Goods are fit for that purpose; or
8.6.1.5 a claim maintainable against Us pursuant to Clause 8.1 of these
Terms.
8.6.2 You will unconditionally fully and effectively indemnify Us against all loss
damages costs on an indemnity basis and expenses awarded against or
incurred by Us in connection with or paid or agreed to be paid by Us in
settlement of any claim for infringement of any patents copyright design
trademark or any other industrial or intellectual property rights of any other
person.
8.6.3 You will further unconditionally fully and effectively indemnify Us against
all loss damages costs on an indemnity basis and expenses awarded against
or incurred by Us in connection with or paid or agreed to be paid by Us in
settlement of any other claim arising from any such manufacturing processing
or milling including but not limited to any Defect in the Goods. This indemnity
will be reduced in proportion to the extent that such loss damage costs and
expenses are due to our negligence.
8.7 You will unconditionally fully and effectively indemnify Us against all loss
damages costs on an indemnity basis and expenses awarded against or
incurred by Us in connection with or paid or agreed to be paid by Us in
settlement of any claim by any third party arising from the supply or use of the
Goods. This Indemnity will be reduced in proportion to the extent that such loss
damage costs and expenses are due to our negligence.
8.8 Without prejudice to any other provisions in these Terms in any event
our total liability for any one claim or for the total of all claims arising from any
one act of default on our part (whether arising from our negligence or
otherwise) shall not exceed the purchase price of the goods the subject matter
of any claim.
9. NON-PAYMENT/INSOLVENCY
9.1 “Insolvent” means You becoming unable to pay your debts within the
meaning of Section 123 of the Insolvency Act 1986; the levying or the threat
of execution or distress on any of your property; the appointment of a receiver
or administrative receiver over all or any part of your property; a proposal for a
voluntary arrangement or compromise between You and your creditors whether
pursuant to the Insolvency Act 1986 or otherwise; the passing of a resolution
for voluntary winding-up or summoning a meeting to pass such a resolution
otherwise than for the purposes of a bona fide amalgamation or reconstruction;
the presentation of a petition for your winding-up or for an administration order
in relation to You; if You suffer any analogous step or proceedings under
foreign law or You ceasing or threatening to cease to carry on your business.
9.2 If you fail to pay the price for any Goods on the due date or fail to pay
any sum due to Us under any contract on the due date or You become
insolvent or if You are a Limited Company or partnership and there is a material
change in your constitution or You commit a material breach of this Contract
and fail to remedy that breach all sums outstanding between You and Us shall
become immediately payable and We shall be entitled to do any one or more
of the following (without prejudice to any other right or remedy We may have):-
9.2.1 require payment in cleared funds in advance of further deliveries
9.2.2 cancel or suspend any further deliveries to You under any contract
without liability on our part
9.2.3 without prejudice to the generality of Clause 7 of these Terms exercise
any of our rights pursuant to that clause.
9.3 If we reasonably incur third party costs such as tracing or debt collection
agency costs or seek legal advice or take legal proceedings to enforce our
rights as a result of your breach of this Contract including but not limited to
recovery of any sums due, you will reimburse us such reasonable agency costs
or legal costs incurred on an indemnity basis.
10. GENERAL
10.1 This Contract shall be governed and interpreted according to the Law of
England and Wales and You agree to submit to the non-exclusive jurisdiction
of the English Courts.
10.2 We shall not be liable for any delay or failure to perform any of our
obligations in relation to the Goods due to any cause beyond our reasonable
control including industrial action.
10.3 The waiver by Us of any breach or default of these Terms shall not be
construed as a continued waiver of that breach nor as a waiver of any
subsequent breach of the same or any other provision.
10.4 If any clause or sub-clause of these Terms is held by a competent
authority to be invalid or unenforceable the validity of the other clauses and
sub-clauses of these Terms shall not be affected and they shall remain in full
force and effect.
10.5 We may assign novate or sub contract all or part of this Contract and
You shall be deemed to consent to any novation. This Contract is personal to
You and it may not be assigned.
10.6 Nothing in this Contract is intended to or will grant any right to any third
party to enforce any terms of this contract whether express or implied.