General Terms and Conditions

CONTRACT TERMS FOR SALE OF GOODS

1. Definitions
In these terms and conditions, the following words shall have the following meanings:
1.1 “Buyer” shall mean the company, firm or person referred to in the Company’s estimate
or quotation.
1.2 “Company” shall mean Columbus Precision Mouldings Limited of 3-4 The Runnings,
Cheltenham, Gloucestershire, GL51 9NJ.
1.3 “Goods” shall mean the product articles or things which are referred to in the
Company’s estimate or quotation provided in accordance with clause 2.2.
2. Making the Contract
2.1 The Company’s salesmen are not authorised representatives and are not authorised to
accept, confirm or vary any order nor to make any representation or promise on the
Company’s behalf.
2.2 Any estimate or quotation provided by the Company which comprises an invitation to
treat is open for a period of 30 days only from the date thereof, provided that the
Company has not previously withdrawn it. Any order issued by the Buyer is subject to
acceptance by the Company and a contract will only be formed when the Company
has accepted the Buyer’s offer in writing. Any offer made by the Buyer orally must be
confirmed to the Company in writing.
2.3 All orders are placed under these terms and conditions alone and exclude any other
terms and conditions inconsistent therewith which a Buyer might seek to impose even
though such other terms and conditions may be submitted in a later document and/or
purport to exclude or supersede any terms and conditions inconsistent with them or
which may be contained in any offer acceptance or counter offer made by the Buyer.
2.4 No variation of these terms and conditions is permitted unless expressly accepted by
a Director of the Company in writing.
2.5 The Company shall not be bound by and reserves the right to correct, before and after
the Contract is made, any typographical, clerical or other obvious error or omission in
any sales literature, quotation, price list, acceptance of offer, invoice or other
document or information issued by the Company.
3. Cancellation
3.1 No cancellation by the Buyer is permitted except where expressly agreed by a Director
of the Company in writing.
3.2 The Buyer will in the event of agreed cancellation by the Buyer indemnify the
Company fully against all expenses incurred up to the time of such cancellation.
4. Price
4.1 All prices quoted are those applying at the date of the estimate or quotation provided
in accordance with clause 2.2.
4.2 Unless otherwise stated all prices quoted are nett ex works exclusive of VAT.
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4.3 The Company reserves the right at any time prior to sending an order confirmation to
the Buyer to adjust the price to take account of any increase in the cost of raw
materials, labour or services or any currency fluctuations affecting the cost of
imported materials.
5. Sale of Goods to Countries Outside UK
5.1 The Buyer shall be responsible for the payment of all import duties and taxes
which are levied where the Goods are delivered outside the UK. The Company has no
control over these charges and cannot predict the amount of any such charge.
5.2 The Buyer shall be responsible for ensuring that it complies with all applicable laws
and regulations of the country for which the Goods are destined. The Company will
not be liable for any breach by the Buyer of any such laws.
5.3 The Buyer is responsible at its own expense to obtain any import or export licence or
any other documentation deemed necessary by any governmental authority.
6. Terms of Payment
6.1 All sums are due and payable under these terms and conditions not later than 30 days
from the date of invoice, notwithstanding that delivery may not have taken place or
that title to the Goods has not passed to the Buyer, unless expressly varied by the
Managing Director of the Company in writing.
6.2 Time for payment shall be of the essence.
6.3 The Company reserves the right to charge interest at 4% per annum above the base
rate from time to time of Barclays Bank Plc on all overdue accounts, such interest
being deemed to accrue on a day to day basis from the date for payment under clause
6.1.
6.4 The Buyer shall have no right to set off, statutory or otherwise.
6.5 If the Buyer (being a company) has a petition presented for its winding up or passes a
resolution for voluntary winding up otherwise than for the purpose of a bona fide
amalgamation or reconstruction or compounds with its creditors or has an
administrator or a receiver appointed on all or any part of its assets or (being an
individual) becomes bankrupt or insolvent or enters any arrangement with its creditors
or commits a material or serious breach of this agreement (and in the case of such a
breach being capable of remedy fails to remedy it within 7 days of receiving notice to
do so), the Buyer will be deemed to have repudiated the contract.
6.6 The Company reserves the right at any time at its discretion to demand security for
payment before continuing work or delivering any order.
6.7 The Company may in its absolute discretion and without prejudice to any other rights
which it may have, suspend all future deliveries of Goods to the Buyer and or
terminate any contract without liability upon its part in the event of any breach of these
terms and conditions by the Buyer.
7. Delivery
7.1 All Goods ready for delivery shall be delivered to the Buyer’s address appearing in the
Buyer’s order.
7.2 Time of delivery is not of the essence.
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7.3 The Company shall not be liable for any loss whatsoever or howsoever arising caused
by its non-delivery or by failure to make Goods ready for collection at the due date.
7.4 The Company reserves the right to make delivery by instalments and to tender a
separate invoice in respect of each instalment.
7.5 When delivery is to be by instalments or the Company exercises its right to deliver by
instalments under clause 7.4 hereof or if there shall be a delay in the delivery of any
one or more instalments for whatsoever reason this will not entitle the Buyer to treat
the contract at repudiated or to claim damages.
7.6 Deviations in quantity of the Goods delivered (representing not more than 10% by
value) from that stated in these terms and conditions shall not give the Buyer any right
to reject the Goods or to claim damages and the Buyer shall be obliged to accept and
pay at the contract rate for the quantity of Goods delivered.
8. Risk and the passing of property
8.1 Risk in the Goods shall pass to the Buyer when the Goods are delivered to, or
collected by, the Buyer or its agent.
8.2 Notwithstanding risk in the Goods passing in accordance with clause 8.1. Title in the
Goods shall not pass to the Buyer until whichever shall be first to occur of the
following:
8.2.1 payment being received by the Company for the Goods and no other
amounts then being outstanding from the Buyer to the Company in respect
of other goods supplied by the Company;
8.2.2 the Buyer selling the Goods in accordance with the provisions of these
terms and conditions in which case title to the Goods shall be deemed to
have passed to the Buyer immediately prior to delivery of the Goods to the
Buyer’s customer; and
8.2.3 the Company waiving its rights under this clause 8.2 in respect of specified
Goods whereupon title to the said Goods shall forthwith vest in the Buyer.
8.3 The Buyer is licensed by the Company to use or to agree to sell the Goods delivered to
the Buyer subject to the express conditions that the entire proceeds of any sale are
held in trust for the Company and are not mixed with other monies or paid into an
overdrawn bank account and shall at all times be identifiable as the Company’s
monies.
8.4 Until title to the Goods passes:
8.4.1 the Buyer will hold the Goods as fiduciary agent and bailee for the
Company.
8.4.2 the Goods shall, subject to clause 8.3, (at no cost to the Company) be kept
separate and distinct from all other property of the Buyer and of third
parties and in good substantial repair and condition and be stored in such
a way as to be clearly identifiable as belonging to the Company.
8.4.3 the Company may at any time revoke the power of sale and use contained
in clause 8.3 by notice to the Buyer if the Buyer is in default for longer than
14 days in the payment of any sum whatsoever due to the Company
(whether in respect of the Goods or any other goods supplied at any time
by it to the Buyer or if the Company has bona fide doubts as to the
solvency of the Buyer).
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8.4.4 the Buyer’s power of sale and use contained in clause 8.3 shall
automatically cease if the Buyer has a petition presented for its winding up
or passes a resolution for voluntary winding up otherwise than for the
purposes of a bona fide amalgamation or reconstruction or compounds
with its creditors or has an administrator or a receiver appointed of all or
any part of its assets or becomes bankrupt or insolvent or enters into any
arrangements with creditors or takes or suffers any similar action in
consequence of debts or carries out or undergoes any analogous act or
proceedings under foreign law.
8.4.5 upon determination of the Buyer’s power of sale and use pursuant to
clause 8.4.3 or clause 8.4.4 the Buyer shall place any of the Goods in its
possession or under its control and unsold at the disposal of the Company
and the Company shall be entitled to enter upon any premises of the Buyer
for the purpose of removing such goods.
8.5 The Company shall at any time be entitled to appropriate any payment made by the
Buyer in respect of any Goods in settlement of such invoices or accounts in respect of
such Goods as the Company may in its absolute discretion think fit notwithstanding
any purported appropriation to the contrary by the Buyer.
9. Lien and Stoppage
9.1 Until such times as the title in the Goods has passed to the Buyer the Company has
the right to withhold delivery if the Buyer (being a company) has a petition presented
for its winding up or passes a resolution for voluntary winding up otherwise than for
the purpose of a bona fide amalgamation or reconstruction or compounds with its
creditors or has an administrator or a receiver appointed of all or any part of its assets
or (being an individual) becomes bankrupt or insolvent or enters into any
arrangements with creditors or takes or suffers any similar action in consequence of
debts or carries out or undergoes any analogous act or proceedings under foreign
law.
9.2 When the title in the Goods has passed to the Buyer and the time for payment has
fallen due but payment has not been made or if the Buyer (being a company) has a
petition presented for its winding up or passes a resolution for voluntary winding up
otherwise than for the purpose of bona fide amalgamation or reconstruction or
compounds with its creditors or has an administrator or a receiver appointed of all or
any part of its assets or (being an individual) becomes bankrupt or insolvent or enters
into any arrangements with creditors or takes or suffers any similar action in
consequence of debts or carries out or undergoes any analogous act or proceedings
under foreign law then (subject to procuring all consents required by statute) the
Company has:
9.2.1 a lien on the Goods so long as the Company is in possession of them;
9.2.2 a right of stoppage in transit; and
9.2.3 a right of resale.
9.3 For the avoidance of doubt it is hereby declared that nothing in this clause shall affect
the rights given to the Company by Sections 38 to 48 of the Sale of Goods Act 1979.
10. Inspection/Shortages
10.1 The Buyer is under a duty wherever possible to inspect the Goods on delivery or on
collection as the case may be.
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10.2 Where the Goods cannot be examined the carriers note or such other note as
appropriate shall be marked “not examined”.
10.3 The Company shall be under no liability for any defects or shortages that would be
apparent on 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
Company within 7 days of delivery detailing the alleged defect or shortage.
10.4 In all cases where defect or shortages are complained of the Company shall be under
no liability in respect thereof unless an opportunity to inspect the Goods is supplied to
the Company before any use is made thereof and before any alteration or modification
is made thereto by the Buyer.
10.5 Subject to clause 10.3 and clause 10.4 the Company shall make good any shortage in
the Goods and where appropriate replace any Goods damaged in transit as soon as it
is reasonable to do so, but otherwise shall be under no liability whatsoever or
howsoever arising for such shortage or damage.
11. Warranty
11.1 The Company warrants that it has title to and unencumbered right to sell the Goods.
11.2 No representation or warranty is given as to the suitability or fitness of the Goods for
any or any particular purpose and the Buyer shall satisfy himself or itself in this
respect and shall be totally responsible therefor.
11.3 If the Goods are in such a state as would but for this condition entitle the Buyer to
repudiate the contract and/or claim damages from the Company the Company
reserves the right to repair or replace the Goods.
12. Liability
12.1 Nothing in this clause 12 shall be deemed to exclude or restrict the Company’s liability
to the Buyer for death or personal injury resulting from negligence.
12.2 Each of the sub-clauses in this clause 12 is to be treated as separate and independent.
12.3 The Company is willing to undertake liability additional to that provided by this clause
12 in exchange for a higher price.
12.4 The Seller shall not be liable for defects in the Goods caused by abnormal use, misuse
or neglect.
12.5 The Company agrees that if any defect caused by faulty design, manufacture, material
or workmanship is discovered during the period of 12 months commencing with the
date of despatch, the Company will either repair the Goods at its own expense or, if it
chooses to do so, replace them. The Buyer cannot claim the benefit of this clause 12.5
unless he or it informs the Company of the relevant defect in writing within 7 working
days of discovering it and returns the Goods to the Company at his or its own
expense.
12.6 The risk of accidental loss whilst the Goods are being returned will be borne by the
Buyer.
12.7 In consideration for receiving the benefit of this clause, the Buyer agrees that apart
from those terms set out in clauses 11 and 12, no other terms, whether conditions,
warranties or intermediate terms, express or implied or otherwise, shall form part of
this contract
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12.8 Except as expressly set out in these terms and conditions, all conditions, warranties
and representations express or implied by statute, common law or otherwise with
respect to the Goods are excluded to the fullest extent permitted by law and in no
event shall the Company be liable for any negligence or tortious loss or for any of the
following losses or damage (whether such losses were foreseen, known or otherwise
and whether or not the Company is advised of the possibility of loss, liability, damage
or expense):
12.8.1 loss of profits;
12.8.2 loss of contracts;
12.8.3 damage to property of the Buyer or anyone else;
12.8.4 personal injury to the Buyer or anyone else (except so far as such injury is
attribute to the Company’s negligence); and
12.8.5 any indirect or consequential loss or damage howsoever caused
(including, for the avoidance of doubt, where such loss or damage is of the
type specified in clauses 12.8.1 – 12.8.4).
12.9 Limitation
The Company’s total liability for any one claim or for the total of all claims arising from
any one act or default of the Company (whether arising from the Company’s
negligence or otherwise) shall not exceed £100,000 or the contract price whichever is
the greater.
13. Force Majeure
13.1 The Company shall not be liable for any delay or non-performance of its obligations
arising from circumstances outside the Company’s control.
13.2 Non-exhaustive illustrations of such circumstances are an act of God, war, riot,
explosion, abnormal weather conditions, fire, flood, strikes, lock outs, Government
action or regulations (UK or otherwise), delay by suppliers, accidents and shortage of
materials, labour or manufacturing facilities.
13.3 Should the Company be prevented from delivering in the above circumstances, it shall
give the Buyer written notice of this fact as soon as reasonably practicable after
discovering it.
13.4 If such delay or non-performance persists for 3 months or more after the Buyer
receives the Company’s notice, then either party may give written notice to the other
cancelling the contract.
13.5 If the contract is cancelled in this way, the Company will refund any payment which
the Buyer has already made on account of the price (subject to deduction of any
amount the Company is entitled to claim from the Buyer) but the Company will not be
liable to compensate the Buyer for any further loss or damage by the failure to deliver.
14. Sales Promotion Documentation
Whilst the Company takes every precaution in the preparation of its catalogues,
technical circulars, price lists and its other literature, these documents are for the
Buyer’s general guidance only. The particulars contained therein shall not constitute
representations by the Company and the Company shall not be bound thereby.
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15. Notices
Any notice to be given hereunder shall be in writing and delivered by hand or sent by
post, fax or email. Any notice shall be deemed to have been duly given if sent or
delivered to the party concerned at its address used for the offer or acceptance by
which the contract was formed or such other address as that party may from time to
time notify in writing and shall be deemed to have been served, if sent by post, 48
hours after posting and if delivered by hand or sent by fax or email, upon delivery or
sending.
16. Assignment
The Buyer shall not assign or transfer or purport to assign or transfer the contract or
the benefits thereof to any other person without prior written consent of the Company.
17. Proper Law and Jurisdiction
The contract shall be governed by and construed in accordance with English Law and
all disputes arising in connection with the contract shall be submitted to the exclusive
jurisdiction of the English courts.
18. Headings
The headings of these conditions are convenience only and shall have no effect on the
interpretation thereof.