Terms & Conditions
CONDITIONS FOR THE SUPPLY OF GOODS AND SERVICES BY ARNOLD WRAGG LIMITED
1. DEFINITIONS, INTERPRETATION AND GENERAL
1 . 1 In these Conditions:
1 . 1 . 1 "the Company" means Arnold Wragg Limited.
1 . 1 .2 "consequential loss" includes, without limitation, loss of profits, •loss of business, loss of production, other economic toss and loss of goodwill.
1 . 1 .3 "the Customer" means the individual, firm, company or other party with whom the Company contracts.
1 . 1 .4 "Euro" means the single currency according to European Community law.
1 . 1 .5 "international supply contract" means such a contract as is described in section 26(3) of the Unfair Contract Terms Act 1977.
1 . 1 .6 "supply" includes (but is not limited to) any supply under a contract of --sale.
1 . 1 .7 "these Conditions" means these standard conditions and any other terms of sale set out or referred to in the Company's acknowledgement of order.
1 .2 The headings in these Conditions are for convenience only and are not for the purpose of interpretation.
1 .3 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
If any provision of these Conditions (or of any other conditions or other terms that may be agreed in writing between the Company and the Customer) is or becomes illegal, void or unenforceable for any reason, the validity of the remaining provisions shall not be affected.
1 .5 Failure by the Company to enforce strict compliance with these Conditions by the Customer will not constitute a waiver of any of the provisions of these Conditions.
1 .6 References to clauses are to clauses of these Conditions, unless stated otherwise.
2. CONTRACT TERMS, VARIATIONS AND REPRESENTATIONS
2. 1 No order in pursuance of any quotation or otherwise shall be binding on the Company unless and until such order is accepted by the Company. If the Company so. requires, oral orders shall be confirmed by the Customer in writing. Any contract made between the Company and the Customer shall be subject to these Conditions and save as aftermentioned no representative or agent of the Company has authority to agree any terms or make any representations inconsistent with them or to enter into any contract except on the basis of them; any such term, representation or contract will bind the Company only if in writing and signed by a director of the Company.
2.2 Unless otherwise agreed in writing by the Company these Conditions Shali apply to the exclusion of any terms and Conditions stipulated or referred to by the Customer in his order or pre-contract negotiations or any inconsistent terms implied by law or trade custom, practice or course of dealing.
2.3 Any general description contained in the Company's catalogues or other advertising material or othemise shall not form a representation or be part of the contract.
2.4 Where the Company has not given a written acknowledgment of the Customer's order these Conditions will nonetheless apply to the contract provided that the Customer has had prior notice of them.
2.5 The Company reserves the right to correct any clerical or typographical errors made by its employees at any time.
3. SPECIFICATION, INSTRUCTIONS OR DESIGN
3.1 If goods are made to a specification, instruction or design supplied by the Customer or any third party on behalf of the Customer then:
31 .1 the suitability and accuracy of that specification, instruction or design will be the Customer's responsibility; and
3.1 .2 the Customer will indemnify the Company against any infringement or unauthorised use of and/or any alleged breach, infringement or unauthorised use of any third party's rights and any loss, damage or expense which it may incur by reason of any such breach, infringement or unauthorised use or alleged breach, infringement or unauthorised use in any country; and
3.1 .3 the Customer will indemnify the Company against any loss, damage or expense in respect of any liability arising in any country by reason of the goods being made to such specification, instruction or design.
4. QUOTATIONS AND PRICES
4. 1 Any prices appearing on the Company's price lists, catalogues and other advertising matters are for general guidance only and, subject to clauses 4.2 and 4.3 prices will be as specified in the Company's acknowledgment of order.
4.2 Unless otherwise agreed in writing, the Company shall be entitled to increase its prices at any time to take account of any increase in the cost to the Company of purchasing any goods or materials or manufacturing, working on or supplying any goods or services (including but not limited to any such increase arising from any error or inadequacy or change to any specification, instructions or design provided by the Customer, any modification carried out by the Company at the Customer's request or any change in taxes, customs duties, freight charges, insurance premiums or exchange rates) and such increased. prices ruling at the date of despatch by the Company shall be substituted for the previous contract price. In particular, but without prejudice to the generality of the foregoing, if the contract price is specified or payable in the Euro or in a currency other than Pounds Sterling ("the Payment Currency") the Company shall be entitled to increase the contract price to take account of any change in exchange rates between Pounds Sterling and the Payment Currency (as evidenced by the exchange rates quoted by the Royal Bank of Scotland plc) occurring between the acceptance of the order and the actual payment of the contract price.
4.3 All prices quoted are exclusive of VAT and the Customer shall pay any and all taxes, duties and other government charges payable in respect of the goods or services. Unless otherwise agreed in writing prices quoted are also exdusive of carriage and delivery costs, loading costs, packing costs and insurance costs.
4.4 Where, at the Customer's request, the Company undertakes urgent delivery, the Company reserves the right to make an exceptional charge for such delivery irrespective of the value of the order in question.
4.5 The Company reserves the right to impose a minimum charge on any particular order.
5.1 If the Company has agreed to deliver the goods to the Customer's premises the Company shall deliver the goods by the means most convenient to the Company to the address or addresses specified by the Customer at the time of placing its order or (in the event that the Customer fails so to specify an address) to any address which the Company may decide at which the Customer resides or carries on business. The Company shall be entitled to add to the contract price a reasonable charge for packaging and delivery.
5.2 For the purposes of this sub-clause lithe goods" shall mean the whole or any instalment of the goods and "the collection date" shall mean the date on which the goods are or will be ready for delivery. If the contract requires the Customer to take delivery of the goods at the Company's premises then:
5.2.1 The Company shall notify the Customer of the collection date and the Customer shall take delivery of the goods within 7 days of the collection date; and
5.2.2 Loading of the goods shall be at the Customer's expense.
5.3 If the contract is an international supply contract it shall be deemed to incorporate the latest edition of Incoterms current at the date of the contract save that in the event of any inconsistency between Incoterms and any express term of the contract the latter shall prevail. The Company shall be under no obligation to give the Customer the notice specified in section 32(3) of the Sale of Goods Act 1979.
5.4 Should the Company be delayed in or prevented from delivering the goods or providing the services due to the failure of any of the computerised business or manufacturing systems of the Company or its subcontractors or due to any cause whatsoever beyond the reasonable control of the Company, the Company shall be at liberty to terminate the contract or suspend the order placed by the Customer without incurring any liability for any loss or damage arising therefrom, but without prejudice in any such case to rights accrued to the Company in respect of deliveries already made.
5.5 While the Company will endeavour to deliver the goods or complete the services by any date or within any period agreed upon, such dates and periods are estimates only given in good faith and the Company will not be liable for any failure to deliver or complete by such a date or within such a period. Time for delivery or for the completion of services shall not be of the essence of the contract. Moreover, the Company shall be entitled to defer delivery or performance until any monies due from the Customer have been received.
5.6 If the Customer causes the delivery' of goods to be delayed or if the Customer refuses or fails to take delivery of the goods on the agreed date or dates the Company may, at its option, either store or despatch the goods at the sole risk and expense of the Customer.
5.7 Quantities despatched may vary by up to plus or minus 3% from those ordered. Such variations will be deemed to be due execution of the order and may be shown on invoices and charged pro rata.
6. RISK IN THE GOODS
6. 1 Save in the case of international supply contracts and subject to any agreement in writing by the Company, the risk in goods which the Company agrees to supply shall pass to the Customer on:
6. 1 . 1 Delivery;
6.1 .2 the date on which the Customer defaults (which expression shall have the meaning set out in clause 7.1.3); or
6. 1 .3 the date on which the goods being ready for delivery, delivery is postponed at the Customer's request, whichever shall first occur. Delivery shall be deemed to be completed before offloading or (in the case of delivery at the Company's premises) loading of the goods.
6.2 All other goods or materials shall be at the Customer's sole risk at all times, and the Company shall not be liable for any loss of or damage sustained by any goods or materials left with the Company howsoever caused and whether or not attributable to negligence on the part of the Company or negligence or wilful default on the part of any employee or agent of the Company. The Customer shall adequately insure such goods and materials in respect of loss or damage whilst the same are under the Company's control and/or in transit from and to premises occupied by the Company.
7. 1 For the purposes of this clause:
7.1 .1 "the goods" shall mean the whole or any instalment of the goods which the Company has agreed to supply or to which the Company has agreed to carry out work;
7.1 2 The relevant date" shall mean the date on which:
7. 1 .2. 1 The invoice is dated; or
7.1 .2.2 The Company despatches the goods; or
7.1 .2.3 The Customer takes delivery of the goods; or
7.1 .2.4 The Customer defaults;
Whichever shall first occur;
7.1.3 The Customer defaults if he fails to provide an address for delivery as required by the contract or (if it is agreed that the Customer will take delivery at the Company's premises) he fails to take delivery in accordance with such agreement or he fails to allow the services to be performed.
7.2 Unless otherwise specified in writing by the Company payment must be received from the Customer net cash in Pounds Sterling not later than the last day of the month following the month in which the relevant date falls notwithstanding that property in the goods has not passed to the Customer.
7.3 Time for payment shall be of the essence of the contract. Without prejudice to any other rights it may have the Company reserves the right to charge interest at The Royal Bank of Scotland plc base rate plus 4% or at the rate specified from time to time under the provisions of the Late Payment of Commercial Debts (Interest) Act 1998 (whichever is the higher) on all overdue accounts and for the purposes of paragraphs 8 and 1 1 hereof the full purchase price of the goods shall include all interest payable hereunder.
7.4 The Customer shall not be entitled to withhold payment because of any dispute as to quality or performance of the goods or services unless the Company has accepted liability for any alleged breach of warranty or condition in respect thereof or shall have been found so liable by a court of competent jurisdiction.
7.5 In the event that the currency in which the Company has specified that payment is to be made is replaced wholly by a single or unified European currency the prices shall be owed in that single or unified European currency and this shall not have the effect of terminating any contract between the Company and the Customer.
8. FAILURE TO PAY, CANCELLATION OR DEFERMENT
8.1 For the purposes of this clause an intervening event shall mean any such event as is described in sub-clause 8.3.
8.2 If there shall be an intervening event the Company may, within a reasonable time thereafter, defer or cancel any further deliveries or services, stop any goods in transit and treat the contract of which these Conditions form part as determined but without prejudice to its rights to the full purchase price for goods delivered and services performed and damages for any loss suffered in consequence of such determination.
8.3 An intervening event shall be any of the following:
8.3.1 failure by the Customer to make any payment when it becomes due;
8.3.2 breach by the Customer of any of the terms or conditions of the contract;
8.3.3 the Customer's proposal for or entry into any composition or arrangement with creditors;
8.3.4 the presentation against the Customer of any Petition for a Bankruptcy Order, Administration Order, Winding-Up Order, or similar process;
8.3.5 the appointment of an Administrative Receiver or Receiver in respect of the business or any part of the assets of the Customer;
8.3.6 the Company forming the reasonable opinion that the Customer has become or is likely in the immediate future to become unable to pay his, her or its debts (adopting, in the case of a company, the definition of that term set out in Section 123 of the Insolvency Act 1986).
8.4 Cancellation by the Customer will only be accepted at the discretion of the Company and in any case on condition that any costs or expenses incurred by the Company up to the date of cancellation and all loss or damage resulting to the Company by reason of such cancellation will be paid by the Customer to the
Company forthwith. Acceptance of such cancellation will only be binding on the Company if in writing and signed by a director of the Company.
8.5 Any costs incurred by the Company due to suspension or deferment of any order by the Customer or in the event that the Customer defaults in collecting, or giving instructions for the delivery of, any goods or the performance of any services will be payable by the Customer forthwith on demand.
9. LIMITATION OF LIABILITY
9.1 Nothing in these conditions shall exclude or restrict the statutory rights of a Customer who deals as a consumer within the meaning of the Unfair Contract Terms Act 1977.
9.2.1 The Company will have no liability for damage in transit, shfrtage of delivery or loss of goods unless the Customer shall hav given to the Company written notice of such damage, shortage r loss with reasonable particulars thereof within 3 working days of receipt of the goods or (in the case of total loss) of receipt of the invoice or other notification of despatch. The Company's liability, if any, shall be limited to resupplying or (in its discretion) repairing such goods and it shall be a condition precedent to any such liability that the Customer shall if so requested provide authority for the Company's employees or agents to inspect any damaged goods within 14 days of such request.
9.2.2 The Company will have no liability for any direct or consequential loss arising out of any damage in transit, shortage of delivery or loss of goods.
9.3.1 Subject to clause 9.3.5 the Company's liability in respect of any breach of the Company's declaration of conformance or in respect of any defect in or failure of goods supplied or work done is limited to resupplying (with substitute goods) or (at its discretion) repairing or paying for the repair or resupply of goods which are found (in the case of defects apparent upon inspection) within 14 days of delivery and (in the case of defects not so apparent) within 12 months of delivery to the Customer to be defective or fail or are unable to perform in accordance with the contract by reason of
faulty or incorrect workmanship, parts or materials and to carrying out again any services which the Company is found within 6 months of completion of such services to have failed properly to perform in accordance with the contract.
9.3.2 Where the Company has, at the request of the Customer, given information or provided advice to the Customer with regard to the design of the goods or their specification, the Company's liability in respect of any loss or damage sustained by the Customer as a result of the design and/or specification being in some way inappropriate for the purpose for which the goods were ordered shall not exceed the price of the goods concerned.
9.3.3 In the event of any error in any weight, dimension, capacity, performance or other description which has formed a representation or is part of a contract the Company's liability in respect of any direct loss or damage sustained by the Customer as a result of such error shall not exceed the price of the goods in respect of which the description is incorrect.
9.3.4 The Company shall have no liability for any defect or failure in goods supplied where such defect or failure is due to a defect or failure in any material supplied by or on behalf of the Customer.
9.3.5 The Company shall not be liable hereunder unless as soon as reasonably practicable, and in any event within the periods specified in clause 9.3.1, the Customer shall have given to the Company reasonable notice of the defect, failure or error and shall have provided authority for the Company's servants or agents to inspect the goods.
9.3.6 Save as expressly stated in these conditions the Company shall have no other or further liability in respect of any direct loss, consequential loss, costs, expenses or damage sustained by the Customer arising from or in connection with any such breach, defect, failure or error as aforesaid.
9.4 Where the Company repairs or resupplies goods in accordance with the foregoing provisions of this clause or otherwise any time specified for delivery or for the provision of any services under the contract shall be extended for such period as the Company may reasonably require.
9.5 For the purposes of sub-clause 9.3 hereof the expression "work done" shall, without prejudice to its generality, include all work done in or in connection with the manufacture, treatment, testing, delivery, erection, installation, repair or servicing of any goods or in the preparation or provision of any information or advice (with the exception of any information or advice relating to the design or specification of the goods liability for which is dealt with exclusively in clause 9.3.2).
9.6 The Company warrants that it has good title to the goods and that it will transfer such title to the Customer. Subject thereto, and save where the goods are supplied to a consumer (within the meaning of the Unfair Contracts Terms Act 1977) and whether or not the contract is a contract of sale, all other conditions, warranties and other terms express or implied, statutory or otherwise, are expressly excluded, save insofar as contained herein or as otherwise expressly agreed by the Company in writing provided that if and insofar as any legislation or any order made thereunder shall make or have made it unlawful to exclude or purport to exclude from the contract any term or shall have made unenforceable any attempt to exclude any such term, the foregoing provisions of this paragraph will not apply to any such term.
10.1 In the event of any negligence or wilful default on the part of the Company, its employees, agents or sub-contractors in or in connection with the supply of any goods or the design or manufacture thereof or in the carrying out of any work the Company shall have no liability to the Customer save as otherwise expressly provided in these conditions.
10.2 For the purposes of sub-clause 10.1 The expression "the carrying out of any work" shall, without prejudice to its generality, include the carrying out of all work done in or in connection with the design, manufacture, treatment, testing, delivery, erection, installation, repair or servicing of any goods or in the preparation or provision of any information or advice.
10.3 This clause and these Conditions shall have effect subject to the provisions of section 2(1) of the Unfair Contract Terms Act 1977.
11. RETENTION OF TITLE
11.1 The following provisions shall apply to all contracts other than international supply contracts and to all goods which under the contract the Company agrees to supply to the Customer. No failure by the Company to enforce strict compliance
by the Customer with such provisions shall constitute a waiver thereof and no termination of the contract shall prejudice limit or extinguish the Company's rights under this clause.
11.1.1 Upon delivery of the goods the Customer shall hold the goods solely as bailee for the Company and the goods shall remain the property of the Company until such time as the Customer shall have paid to the Company and the Company shall have cleared funds for the full purchase price of afl goods or services supplied whether under the contract or otherwise. Until such time the Company shall be entitled to recover the goods or any part thereof and for the purpose of exercising such rights the Customer hereby grants a licence to the Company its employees and agents with appropriate transport to enter upon the Customer's premises and any other location where the goods are situated and remove the goods.
11.1.2 The Customer is hereby granted a licence by the Company to incorporate the goods in any other products (subject to any other consents which might be required).
11.1.3 The licence granted under sub-clause 11.1.1 shall extend to detaching the goods from any property to which they are attached or into which they have been incorporated or from any other products or goods to which they have been attached pursuant to the licence granted under sub-clause 11.1.2 hereof.
11.1.4 The Customer is hereby licensed to agree to sell on the goods and any products incorporating any of them on condition that the Customer shall inform its customer of the provisions of sub-clauses 1 1 .1 .1 1 1.1 .3. The Customer acts as the Company's bailee in respect of any such sale and shall, immediately upon receipt of the proceeds of sale, and whether or not payment has become due under clause 7 hereof, remit to the Company the full purchase price of the goods sold on less any part thereof which has already been paid and until such amount has been so remitted shall hold such amount as trustee and agent for the Company.
11.1.5 The Customer shall maintain all appropriate insurance in respect of the goods from the date or dates on which the risk therein passes to him. In the event of any loss or damage occurring while the goods remain the property of the Company the Customer shall immediately on receipt of the insurance monies, remit to the Company the full purchase price of the goods lost or damaged less any part thereof
which has already been paid and until such amount has been so remitted shall hold such amount as trustee and agent for the Company. For the avoidance of doubt the provisions of this sub-clause do not affect the Customers obligations under clause 7.
11 .1.6 The licences granted under sub-clause 11.1.2, 11.1.3 and 11.1.4 shall be terminable forthwith at any time upon notice by the Company to the Customer.
11.2 In the case of international supply contracts property in the goods shall pass to the Customer on delivery.
12. HYDROGEN EMBRITTLEMENT
12.1 Certain types of metal and alloy products are susceptible to hydrogen embrittlement and/or hydrogen degradation and cannot be guaranteed to be free from such embrittlement and/or degradation after submission to electro-plating or phosphating followed by de-embrittling heat treatment processes as the Customer requires and at times and temperatures stipulated by the Customer. In such circumstances the Company is unable to guarantee complete freedom from embrittlement and/or hydrogen degradation and the Company shall not be liable for any loss, damage, costs or expenses arising therefrom.
13. INTELLECTUAL PROPERTY
1 3.1 Unless otherwise agreed in writing by the Company all intellectual property rights in the goods and any tooling and in any drawings or other documentation supplied or produced by the Company shall vest in and remain vested in the Company; the Customer agrees to execute any document the Company deems necessary to give effect to this clause.
1 4. 1 All tooling purchased or produced by the Company for the contract and all intellectual property rights therein shall be and remain the property of the Company unless otherwise agreed in writing notwithstanding that the Customer may have made payment or part payment therefor.
1 5. 1 The Customer agrees that it and its employees and agents will keep confidential atl drawings and designs supplied by the Company and will not use, copy or reproduce the same save as specifically authorised by the Company in writing.
1 6.1 If the Company agrees to carry out any special tests it shall be entitled to charge therefor.
16.2 If the Company agrees that any tests (whether special tests or the Company's standard tests) shall be carried out in the presence of the Customer or his representative the Company shall notify the Customer of the date from which it is or will be ready to carry out such tests. The Customer undertakes that he or his representative will, by prior appointment, attend at the premises where the goods are situate within 14 days after such date for the purpose of witnessing such tests and agrees that in default of such attendance the Company may proceed with the tests in his absence and he shall be bound by the results thereof.
17. USE AND SAFE HANDLING
1 7.1 The Customer warrants that it will pass on to all third parties to whom it may supply the goods or any of them all information as to the use and safe handling of such goods as may have been provided to the Customer by the Company.
1 8. 1 The Customer acknowledges that goods for delivery outside the United Kingdom may be subject to United Kingdom export control as well as to import controls at their destination. The Customer will be responsible for ensuring that al t necessary clearances and licences are obtained prior to the despatch date for the goods to be supplied and for obtaining all necessary documentation and lodging the same with the Company prior to the commencement of production.
19. LAW AND JURISDICTION
1 9. 1 The proper law of all contracts with the Company shall be English law which shall govern in all respects the construction and effect of such contracts and of these Conditions. The Customer agrees that in the event of any dispute arising out of the contract or the performance thereof he will submit to the jurisdiction of the English Courts.
The delivery time stated above will commence when all the technical and / or commercial issues, required to process the order, have been resolved
This quotation remains valid for a period of 30 days for manufacturing content, from the submission date, thereafter, subject to confirmation or revision as appropriate. This quotation is subject to our standard to our standard terms & conditions, available on request. Material content subject to availability at time of order. We reserve the right to amend quote(s) if the material stated is no longer available.
If originating material purchased for order meets required specification or alternatively if the customer authorises a concession for material and if the order has been manufactured to dimensions stated on drawing or specification documents provided by customer Arnold Wragg considers contract complete. With this Arnold Wragg accepts no liability for any failure at final testing stages and subsequently requires payment in full within our standard timescales in accordance with Arnold Wragg's standard Terms and Conditions.
Raw Material Costs:
Due to recent and projected increases in both the base price and alloy surcharges applied to all materials, Arnold Wragg Ltd reserve the right to pass on increases over and above those which we might reasonably be expected to absorb.
By placing the order with Arnold Wragg the customer is accepting these additional Terms and Conditions.