General Terms & Conditions
of Sale
1. Interpretation
1.1 In these General Conditions, the following expressions
shall have the following meanings:
“Contract”-
means the Contract for the purchase and sale of Goods subject
to these General Conditions of Sale together with the Order
Acknowledgement.
“Customer” the
person, firm or company to whom Penistone is selling.
“Delivery Note” means
a list supplied to the Customer upon delivery of the Goods
confirming which Goods are being delivered.
“General Conditions” means
these General Terms and Conditions of Sale.
“Order Acknowledgement” the
Schedule, which has been completed by Penistone with details
of this Contract including the Goods, price and (if relevant)
Services.
“Goods” the
goods, materials, equipment and/or services (as applicable)
being sold by Penistone to the customer.
“Penistone” means
Penistone Reinforcements Ltd of Stanley Mills, Talbot Road,
Penistone, S36 9ED.
“Writing” includes
telex, cable and facsimile transmission and comparable means
of communication.
1.2 Any reference in these General Conditions to any enactment
or regulations shall include reference to any statutory amendment
or re-enactment thereof for the time being force and where
appropriate, any subsequent related legislation in the same
behalf.
2 Basis of Sale
2.1 Penistone does business upon and subject to these General
Conditions, which shall be deemed to be incorporated into all
Contracts between Penistone and the Customer to the exclusion
of any other terms and conditions of the Customer unless otherwise
specifically accepted by Penistone in writing.
2.2 A quotation shall only constitute an invitation to treat.
All orders are subject to acceptance by Penistone on an official
form of Order Acknowledgement or (if no Order Acknowledgement
has been sent) acceptance of the Goods shall be deemed to include
acceptance of these General Conditions.
3 Price and Payment
3.1
Unless a fixed price is specified in the said Order Acknowledgement
or is otherwise specifically agreed in writing by Penistone,
the price of the Goods shall be as per Penistone’s current
price list at the date of despatch of the Goods. Where there
is any such fixed price, Penistone shall be entitled to increase
the same to take into account all or any of the following:
3.1.1
any additional costs incurred by Penistone as a result
of the Customer’s
instructions or lack of instructions or failure to comply
with its obligations hereunder;
3.1.2
any increase of any nature in Penistone’s costs.
3.2 If the customer has not been granted extended credit terms
with Penistone, then payment in full must be made by the end
of the month following the month of delivery.
3.3 Where Goods are to be delivered by instalments, payment
for each instalment shall be a condition of delivery.
3.4
Time of payment shall be of the essence and if any amount
shall not be paid on the due date, the Customer shall pay Penistone,
on demand, interest at an annual rate of 4% above Midland Bank
plc’s base lending rate from time to time, such interest
to accrue from day to day and to run after as well as before
any judgement and to be compounded monthly. Penistone shall
be entitled to sue for the price or any instalment notwithstanding
that title has not passed to any relevant Goods or delivery
has not taken place.
3.5 All prices are exclusive of VAT and any other duties or
taxes, which the Customer shall be liable to pay to Penistone.
3.6 Unless otherwise agreed all prices are exclusive of delivery
costs.
3.7 The price for Goods does not include packaging materials
including, but not limited to, all formers, pallets, reels
and stands, which remain always the property of Penistone.
The Customer shall make such packaging materials available
for collection by Penistone, from its premises, 60 days after
the date of delivery of the Goods.
4 Delivery
4.1 Any delivery date specified by Penistone is an estimate
only and is not of the essence of this Contract and Penistone
accepts no responsibility for delay howsoever caused.
4.2
If the performance of any Penistone’s obligations
shall be prevented, hindered or interfered with by a cause
beyond its control, then Penistone shall have the option to
suspend or cancel any obligation on its part not performed
without any liability.
4.3
All deliveries of the Goods will be to the Customer’s
site and the cost of delivery shall be charged to the Customer.
The Customer shall off-load the Goods promptly on their arrival
at site and shall provide and bear the cost of clear access
to and at the point of delivery together with the means of
off-loading.
4.4 If the Customer shall fail to take delivery of any Goods,
Penistone may at its opinion but without prejudice to any other
rights or remedies it may have, sell the Goods for the account
of the Customer and the Customer shall be liable for all costs
and expenses incurred by Penistone and the difference between
the proceeds of sale and the price of the Goods.
4.5 Penistone is entitled to make deliveries by instalments.
5 Acceptance
5.1 The Customer shall inspect all Goods immediately upon
delivery and sign the Delivery Note confirming the quantity
of Goods delivered.
5.2 The Customer will inspect the Goods within 14 days from
the date of delivery and notify Penistone in writing of any
defects in quality. If the Customer shall fail to give such
notice within such period it shall conclusively be deemed that
the Goods are, as to quantity, number, weight, volume and in
all respects, in accordance with this Contract and that the
Customer has accepted them all and the Customer shall have
no right to reject the Goods but shall be bound to pay for
them.
5.3 Delivery to the Customer of Goods, where the weight is
no more then 10% below the ordered weight, shall be deemed
fulfilment of the order and cannot be treated by the Customer
as a breach of this Contract.
6 Customer’s
Obligations
6.1 The Customer shall ensure that the drawings specifications
and instructions supplied by it are accurate and suitable and
do not infringe any (without limitation) patent, registered
design, unregistered design, trade mark, copyright or other
intellectual property rights of any third party.
6.2
The Customer hereby agrees to indemnify and keep indemnified
Penistone against all (without limitation) claims costs expenses
liabilities and proceedings (whether actual or threatened)
resulting from any breach of the Customer’s obligations
set out in clause 6.1.
6.3 The Customer will pay Penistone at all costs and expenses
(including any legal costs on a full indemnity basis) incurred
or sustained by Penistone in retaking possession of the Goods,
under clause 6.2, and in enforcing any of the terms of this
Contract.
6.3.1
If Penistone sends a reminder letter on an overdue invoice
it reserves the right to charge a £20.00 administration
fee per letter.
7 Risk
7.1
Goods supplied by Penistone shall be at the Customer’s
risk immediately on delivery to the Customer or into custody
on the Customer’s behalf (whichever is the sooner) and
the Customer should insure accordingly.
7.2 The Goods shall remain the sole and absolute property
of Penistone as legal and equitable owner until the Customer
has paid Penistone in full for all the Goods and all other
goods the subject of any other contract with Penistone.
7.2.1 Until full payment the Customer shall keep the Goods
for Penistone in the capacity of bailee and shall store the
Goods in such a way that they are clearly the property of Penistone
and shall deal with the Goods as directed by Penistone.
7.2.2
If the Customer makes default in payment or if for any
reason Penistone treats this Contract as discharged Penistone
may repossess the Goods and the Customer hereby irrevocably
licences Penistone to enter into the Customer’s premises
for the purpose of such repossession.
7.2.3 Penistone shall be entitled, where the Goods have been
fixed or attached to any other item to detach the Goods in
order to recover possession of them. Such delivery or retaking
of possession shall be without prejudice to the obligation
of the Customer to purchase the Goods.
7.2.4
Penistone’s right
to retake possession of the Goods shall be immediately effective
if clause 10.1 takes effect.
8 Specifications and Rights in Work
8.1 Penistone reserves the right to supply Goods which many
not correspond exactly with the designs, sizes, weights, specification
or other particulars given.
8.2 All copyright, design rights, trade mark, patent or other
industrial or intellectual property rights of any nature whatsoever
arising from the supply of the Goods shall be or remain (as
the case maybe) the sole property of Penistone.
8.3 The Customer undertakes to Penistone to keep confidential
all information (whether written or oral) concerning the (without
limitation) Goods, services, business affairs or know-how of
Penistone that is shall have obtained or received as a result
of the Contract or the discussions leading up to it, save to
the extent that such information is in the public domain other
than as a result of a breach of this clause.
8.4 The Customer agrees and undertakes to Penistone that it
shall take all steps as from the time to time be necessary
or required by Penistone to ensure compliance with the provisions
of clause 8.3 above by its employees of agents.
9 Warranty
9.1
Any sample provided to the Customer by Penistone are submitted
purely as an impression of the Goods and do not constitute “sale
by sample”. No warranty is given by Penistone as to the
Goods corresponding with any sample.
9.2 The Goods are sold as seen unless the Customer has provided
a written specification to Penistone. The Customer will satisfy
itself that the Goods are suitable for its use, including where
the Customer has purchased the Goods to be used in connection
with other items and it is the Customers responsibility to
ensure that the use of the items together with the Goods do
not affect the performance of the Goods.
9.3
Where a written specification has been supplied to Penistone
with the Customer’s order Penistone guarantees that the
Goods match that written specification subject to clause 5.2.
10 Termination
10.1 Penistone will treat this Contract as discharged if the
Customer;
10.1.1 account is overdue for payment; or
10.1.2 becomes bankrupt; or (being a company) goes into liquidation;
or
10.1.3 suffers a receiver of any nature to be appointed; or
10.1.4 makes an assignment or arrangement for the benefit of
creditors; or
10.1.5 defaults in any obligation to Penistone; or
10.1.6 ceases or threatens to cease to trade; or
10.1.7
in Penistone’s absolute opinion doubts arise
as to the Customer’s solvency;
10.2 Penistone is entitled, without prejudice to its other
rights, to suspend the performance of any of its obligations
to the Customer; or (whether or not notice of suspension has
been given) to cancel such performance and treat this Contract
as discharged without any liability on the part of Penistone.
11 Force Majeure
11.1 Penistone shall not be liable for any branch of its obligations
resulting from a cause beyond its control, including, but not
limited to, fires, strikes (of its own or other employees)
insurrection, riots, embargoes, raw materials shortages, delays
in transportation, requirements or regulations of any civil
or military authority, war (weather declared or not), civil
unrest, terrorist action. If a default due to any of these
matters shall continue for more them 30 days, Penistone shall
have the right to terminate the Contract without liability
to the Customer by serving a written notice on the Customer.
12 Limitation of Liability
12.1
The following provisions set out Penistone’s entire
liability (including any liability for the acts and omissions
of its employees, agents or sub-contractors) to the Customer
in respect of -
12.1.1 any breach of its contractual obligations arising under
this Contract;
12.1.2 any breach of statutory duty;
12.1.3 any representation or statement (except for a fraudulent
representation or statement) or any tortuous act or omission,
including negligence, arising under or in connection with this
Contract.
12.2
Any act or omission on the part of Penistone or its employees,
agents or sub-contractors falling within clause 12.1 above
shall be defined as an “Event of Default”
12.3
Notwithstanding any other provision of these General Conditions,
Penistone does not seek to limit or exclude its liability
to the Customer for death or personal injury resulting from
its own or that of its employees’, agents’ or
sub-contractors’ negligence.
12.4 Penistone accepts liability to the Customer for any Event
of Default which falls within the provisions of its product
liability insurance policy or public liability insurance policy
provided always that the entire liability of Penistone to the
Customer in respect of any such Event of Default shall not
exceed the amount which the insurers of Penistone agree to
pay in relation to such Event of Default subject clause 12.5.
Provided always that if Penistone ceases to have product liability
insurance than clause 12.5 below shall apply.
12.5
Subject to the provisions of clause 12.3 and 12.4 above and
12.6 below, Penistone’s entire liability for any
Event(s) of Default shall be limited to the price paid for
the Goods under this Contract.
12.6 Subject to clause 12.3 above, Penistone shall not be
liable to the Customer in respect of any Event(s) of Default
for loss of profits, loss of contracts, loss of goodwill, increased
overheads or administration expenses, management time, or any
type of special economic, indirect or consequential loss, (including
loss or damage suffered by the Customer as a result of an action
brought by any third party) even if such loss was reasonably
foreseeable or Penistone had been advised of the possibility
of the Customer incurring the same.
12.7 The Customer hereby agrees to afford Penistone not less
than 90 days in which to remedy any Event(s) of Default.
12.8 Except in the case of an Event in default arising under
clause 12.3 above, Penistone shall have no liability to the
Customer in respect of an Event of Default unless the Customer
shall have served notice of the same upon Penistone within
12 months of the date it became aware of the circumstances
giving rise to the Event of Default or the date when it ought
reasonably to have become so aware.
12.9 All terms, conditions, warranties and other matters,
which may be implied by law, are hereby excluded to the fullest
extent permitted by law. Accordingly, save as expressly set
out in these General Conditions, Penistone shall have no liability
of any nature whatsoever to the Customer for any Event(s) of
Default.
13 Notice
13.1 Any notice given under these General Conditions must
be given in writing and sent or delivered by hand, post or
facsimile to the other party at the address stated in the Order
Acknowledgement provided that any:
13.1.1 notice delivered by hand shall be deemed to have been
given when deposited at the appropriate address;
13.1.2 notice sent by post shall be deemed to have been given
48 hours after first class registered letter is posted to the
appropriate address; and
13.1.3 notice sent by facsimile shall be deemed to have been
given on transmission to the correct number, provided that
such notice is confirmed within 48 hours as in 13.1.1 or 13.1.2
above.
14 Other Matters
14.1 The waiver by Penistone of a breach or default of any
of the provisions of this Contract by the Customer shall not
be construed as a waiver nor shall any delay or omission on
the part of Penistone to exercise or avail itself of any right,
power or privilege that it has or may have, operate as a waiver
of any branch or default by the Customer.
14.2 The Customer shall not be entitled to assign this Contract
(or any part of it) nor all or any of its rights or obligations
without the prior written consent of Penistone.
14.3 Headings to clauses are for the purpose of information
and identification only and shall not be constructed as forming
part of this Contract.
14.4 If any provision of this Contract shall be found by any
court of competent jurisdiction to be invalid or unenforceable,
such provision shall be struck out and the remainder shall
remain in full force and effect. The parties hereby agree to
attempt to substitute for any invalid or unenforceable provision,
a valid or enforceable provision that achieves, to the greatest
extent possible, the economic, legal and commercial objectives
of the invalid or unenforceable provisions.
14.5 Any action against Penistone must be brought against
it within 12 months of the Customer becoming aware of the cause
of action.
14.6 Unless otherwise agreed in writing, Penistone shall be
the sole and exclusive owner of any copyright, design rights,
patent rights, trade names, trade marks or other intellectual
or industrial property rights of any nature whatsoever arising
as a result of this Contract.
14.7 The Customer hereby agrees to indemnify and keep indemnified
Penistone against all damages, losses, costs, expenses, death,
personal injury or other liabilities of any nature whatsoever
suffered of incurred by Penistone or any of its employees,
agents, sub-contractors due to any default, act, omission (including
negligence) of the Customer.
14.8 This Contract shall be governed
by and constructed in accordance with English law and the parties
hereby submit to the non-exclusive jurisdiction of the English
Courts. |
