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Interpretation
1.1 Definitions:
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.4.
Contract: the contract between the Supplier and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Supplier.
Force Majeure Event: an event, circumstance or cause beyond a party’s reasonable control.
Goods: the goods (or any part of them) set out in the Order.
Incoterms: the international rules for the interpretation of trade terms of the International Chamber of Commerce 2020 or any subsequently published set of those rules as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
Order: the Customer’s order for the Goods, as set out in the Customer’s purchase order form in the Customer’s written acceptance of the Supplier’s proposal or quotation or as otherwise agreed in writing by the parties.
Specification: the specification for the Goods, including any related plans, designs and drawings, that is agreed in writing by the Customer and the Supplier.
Supplier: North West Roller Services Limited registered in England and Wales with company number 02533261
1.2 Interpretation:
(a) A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
(b) A reference to a party includes its successors and permitted assigns.
(a) A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
(b) Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
(c) A reference to writing or written includes fax and email.
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Basis of contract
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Customer is responsible for ensuring that the terms of the Order and any .applicable Specification are complete and accurate.
2.3 The Order shall only be deemed to be accepted when the Supplier issues a written acceptance of the Order, at which point the Contract shall come into existence.
2.4 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
2.5 Any samples, drawings, descriptive matter, or advertising produced by the Supplier are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
2.6 A quotation for the Goods given by the Supplier shall not constitute an offer
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Goods
3.1 The Goods are described in the Specification.
3.2 The Supplier reserves the right to amend the Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
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Delivery
4.1 Delivery of the Goods shall take place in accordance with Incoterms where applicable, otherwise delivery of the Goods shall be made:
(a) by delivering the Goods to the place specified in the Customer’s orders, or
(b) by the Customer’s acceptance at the location to which the Goods are to be delivered by the Supplier, or
(c) by the Customer collecting the Goods at the Supplier’s premises at any time after the Supplier has notified the Customer that the Goods are ready for collection;
each as agreed in writing between the Customer and the Supplier; or
(d) if no place of delivery is so specified by the Customer collecting the Goods at the Supplier’s premises at any time after the Supplier has notified the Customer that the Goods are ready for collection
4.2 On delivery, the Supplier (or its appointed carrier) shall provide the Customer with a delivery note that shows the date of the Order, and all relevant Customer and Supplier reference numbers,
4.3 Goods despatched by post will be delivered when the Goods are accepted by the post office in the United Kingdom.
4.4 Unless otherwise agreed in writing by the Customer and the Supplier, shipment of all Goods shall be Ex-Works (except that the Supplier may at its discretion load the Goods onto the Supplier’s transport where collected from the Supplier’s premises), and all charges shall be paid by the Customer.
4.5 The Supplier shall endeavour to comply with any shipping instructions given by the Customer with its order for the Goods but the Supplier reserves the right to make part shipments and to ship by vessels of the Supplier’s choice from any port in the United Kingdom or elsewhere
4.6 Where the Customer is to provide a vessel for shipment the Supplier shall not be responsible for any charges resulting from failure by the Customer to give due notice of the vessel’s time of arrival.
4.7 The Delivery Date is approximate only and time for delivery shall not be of the essence. If the Supplier delivers the Goods at any time after the Delivery Date the Supplier shall have no liability in respect of such late delivery.
4.8 If the Customer fails to take delivery of the Goods or any part of them on the Delivery Date and/or fails to provide any instructions, documents, licences, consents or authorisations required to enable the Goods to be delivered on that date, the Supplier shall be entitled upon giving written notice to the Customer to store or arrange for the storage of the Goods and then notwithstanding the provision of Condition 4.1 risk in the Goods shall pass to the Customer, delivery shall be deemed to have taken place and the Customer shall pay to the Supplier all costs and expenses including storage and insurance charges arising from such failure.
4.9 The Supplier shall not be liable for any costs incurred for whatever reason after delivery of the Goods is deemed to have taken place. Where the Goods are sold inclusive of any or all of the freight, handling, port or insurance charges, any increases in, or in the rates for, such charges arising after the date of the Contract and before the Goods are delivered or arising through deviation to a new port or airport necessarily or at the Customer’s request or through any delay however caused shall be for the Customer’s account subject to the absolute discretion of the Supplier.
4.10 If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.11 If ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken or accepted as appropriate actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and, after deducting reasonable storage and selling costs, charge the Customer for any shortfall below the price of the Goods.
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Inspection
5.1 The Customer is under a duty whenever possible to inspect the Goods on delivery or on collection as the case may be.
5.2 The Supplier shall be under no liability for any defect or damage that would be apparent on reasonable careful inspection if the terms of this clause are not complied with and, in any event will be under no liability if a written complaint is not delivered to the Supplier within 5 Business Days of delivery detailing the alleged damage.
5.3 In all cases where defects are complained of the Supplier shall be under no liability in respect thereof unless an opportunity to inspect the Goods is given to the Supplier before any use is made thereof or any alteration or modification is made thereto by the Customer.
5.4 Subject to condition 5.2 and 5.3, the Supplier shall where appropriate repair any Goods damaged in transit where the Supplier has supplied or is otherwise responsible for transportation as soon as it is reasonable to do so, but otherwise shall be under no liability whatsoever arising from such damage.
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Quality
6.1 The Supplier warrants that on delivery, and for a period of 3 months from the date of delivery (warranty period), the Goods shall:
(a) conform in all material respects with the Specification; and
(b) be free from material defects in design, material and workmanship; and
6.2 The Customer expressly acknowledges that:
(a) in supplying the Goods the Supplier relies on information provided by the Customer; and
(b) it has approved the Specification before the Goods were supplied.
6.3 Subject to clause 6.4, if:
(a) the Customer gives notice in writing to the Supplier during the warranty period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 6.1;
(b) the Supplier is given a reasonable opportunity of examining such Goods; and
(c) the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business at the Supplier’s cost,
the Supplier shall, at its option, repair, modify, or replace the defective Goods, or refund the price of the defective Goods in full.
6.4 The Supplier shall not be liable for the Goods’ failure to comply with the warranty set out in clause 6.1 if:
(a) the Customer makes any further use of such Goods after giving notice in accordance with clause 6.3;
(b) the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
(c) the defect arises out of any failure of the Customer to provide any relevant information at any stage;
(d) the defect arises as a result of the Supplier following any information, drawing, design or Specification supplied by or approved by the Customer;
(e) the Customer alters or repairs such Goods without the written consent of the Supplier;
(f) the defect arises as a result of fair wear and tear, use different from or materially more than that which was originally advised by the Customer or set out in the Specification, wilful damage, negligence, or abnormal or unsuitable storage or working conditions; or
(g) the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
6.5 Except as provided in this clause 6, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 6.1.
6.6 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
6.7 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
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Title and risk
7.1 The risk of damage or loss in the Goods shall pass to the Customer in accordance with the relevant provisions of Incoterms or where Incoterms do not for any reason apply on delivery.
7.2 Title to the Goods shall not pass to the Customer until the Supplier receives payment in full for the Goods.
7.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(b) store the Goods in appropriate conditions;
(c) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
7.4 At any time before title to the Goods passes to the Customer, the Supplier may require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
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Price and payment
8.1 The price of the Goods shall be the price set out in the Order or as otherwise agreed in writing between the parties.
8.2 Any quotation or prices submitted by the Supplier to the Customer shall be valid for a maximum of 20 business days only unless otherwise agreed by the Supplier in writing. The Supplier reserves the right to amend any prices at any time after that period.
8.3 The Supplier may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Supplier’s control (including unavailability of materials or foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Supplier adequate or accurate information or instructions.
8.4 The price of the Good excludes any cost or charge which is not expressly included in writing including but not limited to:
(a) any loading or delivery costs or charges;
(b) the cost of obtaining or preparing any necessary export documents (including any necessary import, export or customs clearances, declarations or licences); and
(c) any applicable value added tax, customs, excise, sales taxes, export, import duties or other official taxes, charges, duties or levies which are imposed or charged by any competent fiscal authority in respect of the sale, exportation or importation of the Goods into the country in which the Customer is resident or delivery is to be effected or necessary to enable delivery of the Goods; and
(d) postage, packaging, carriage, freight, handling or insurance
all of which shall be for the Customer’s account and shall be reimbursed by it forthwith in addition to the price where necessarily paid by the Supplier.
8.5 The Supplier may invoice the Customer for the Goods on or at any time after the completion of delivery.
8.6 The Customer shall pay each invoice submitted by the Supplier:
(a) within 30 days of the date of the invoice; and
(b) in full and in cleared funds to a bank account nominated in writing by the Supplier, and
time for payment shall be of the essence of the Contract.
8.7 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
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Limitation of liability
9.1 The Supplier has obtained insurance cover in respect of its own legal liability for individual claims not exceeding £ 50,000 per claim. The limits and exclusions in this clause reflect the insurance cover the Supplier has been able to arrange and the Customer is responsible for making its own arrangements for the insurance of any excess loss.
9.2 The restrictions on liability in this clause 9 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Goods Act 1979.
9.4 Subject to clause 9.3, the Supplier’s total liability to the Customer shall not exceed the total price of the Goods or £50,000 whichever is the lower amount.
9.5 Subject to clause 9.3, the following types of loss are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
9.6 This clause 9 shall survive termination of the Contract.
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Termination
10.1 Without limiting its other rights or remedies, the Supplier may terminate this Contract or at its discretion suspend provision of the Goods under the Contract each with immediate effect by giving written notice to the Customer if:
(a) the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 5 days of that party being notified in writing to do so;
(b) the Customer’s financial position deteriorates or appears to have deteriorated to the extent that, or the Customer’s conduct gives any other reason such that, the Supplier acting reasonably has reached the opinion that the Customer’s ability to give effect to the terms of the Contract is in jeopardy.
10.2 Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
10.3 On termination of the Contract for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.
10.4 Termination or expiry of the Contract, however arising, shall not affect any of the parties’ rights and remedies that have accrued as at termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.
10.5 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of the Contract shall remain in full force and effect.
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Force majeure
11.1 Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from a Force Majeure Event. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations.
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General
12.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
(b) The Customer may not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of the Supplier.
12.2 Confidentiality.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 12.2(b).
(b) Each party may disclose the other party’s confidential information:
(i) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under the Contract. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party’s confidential information comply with this clause 12.2; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
12.3 Entire agreement.
(a) The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
(b) Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
(c) The provisions of clause 12.3 (a) shall not apply to any confidentiality or other non-disclosure agreement (an NDA) between the parties which the parties have expressly agreed will remain in place. In such circumstances such NDA shall be deemed to supersede the provisions of clause 12.2 of these Conditions.
12.4 Variation.
No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
12.5 Waiver.
No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.6 Severance.
If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Contract. If any provision of the Contract is deemed deleted under this clause 12.6 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.7 Notices.
(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(ii) sent by email to an address previously advised to the other party in writing.
12.8 Third party rights.
Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
12.9 Dispute resolution
If any dispute arises in connection with this agreement, the parties agree to enter into mediation in good faith to settle such a dispute and will do so in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure. Unless otherwise agreed between the parties within 14 working days of notice of the dispute, the mediator will be nominated by CEDR.
12.10 Governing law.
The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
12.11 Jurisdiction.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
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