1.1 In these conditions:
“Buyer” means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller.
“Goods” means the goods (including any instalment of the goods or any part of them) which the Seller is to supply in accordance with these conditions.
“Seller” means Startwell Engineering UK Ltd (registered in England and Wales under number 2753223).
“Conditions” mean the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and Seller. “Contract” means the contract for the purchase and sale of the Goods.
“Writing” includes telex, cable, facsimile transmission and comparable means of communication.
Any reference in these Conditions to any provision of a statute shall be constructed as a reference to that provision as amended, re-enacted or intended at the relevant time.
1.2 The headings in these Conditions are for convenience only and shall not affect their interpretation.
2. Basis of the Sale
2.1. The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer or any written order of the Buyer which is accepted by the Seller, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made by the Buyer.
2.2. No variation to these conditions shall be binding unless agreed in Writing between the authorized representatives of the Buyer and the Seller.
2.3. Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods is followed or acted upon entirely at the Buyer’s own risk.
2.4. Any typographical or other error or omission in any sales literature, quotation, invoice or other document issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. Order and Specifications
3.1 No order shall be deemed to be accepted by the Seller unless submitted or confirmed in Writing.
3.2. The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of the order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the contract in accordance with its terms.
3.3. The quantity, quality and description of and any specification for the Goods shall be those set out by the Buyer’s order (if accepted by the Seller).
3.4. The Seller reserves the right to make any specification of the Goods which are required to conform with any statutory or EC requirements or, where the goods are supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.5. No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used) damages, charges and expenses incurred by the Seller as a result of cancellation.
4. Price of the goods
4.1. The price of the Goods shall be the Seller’s quoted price and are valid for the stipulated quantity quoted (and no other), and are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2. The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the goods to reflect any factor beyond the control of the Seller such as without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture, any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3. Except as otherwise stated under the terms of any quotation and unless otherwise agreed in Writing all prices are given by the Seller or an ex-works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’s premises, the Buyer shall be liable to pay the additional charges for transport, packaging and insurance.
4.4. The price is exclusive of any applicable value added tax for which the Buyer shall be additionally liable.
5. Terms of Payment
5.1. The Seller shall be entitled to require payment before delivery of the goods.
5.2. Subject to 5.1 or any special terms agreed in Writing between the Buyer and Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2.1. The Buyer shall pay the price of the Goods within thirty days of the date of the Seller’s invoice, and the Seller shall be entitled to recover the price, not withstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only on request
5.3. If the Buyer fails to make any payment on the due date, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.3.1. Cancel the contract or suspend any future deliveries to the Buyer;
5.3.2. Appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (not withstanding any purported appropriation by the Buyer); And
5.3.3. Charge the Buyer interest (both before and after any judgement) on the amount unpaid at the rate of 5% per annum above the Bank of England Bank base rate from time to time, until payment in full is made (part of a month being treated as a full month for the purpose of calculating interest).
6.1. Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’s premises or, if some other place for delivery is agreed by the Seller delivering the Goods to that place, with the Buyer paying the cost of carriage, insurance and or freight.
6.2. Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence. The Goods may be delivered by the Seller in advance of the quoted delivery date.
6.3. Where the Goods are to be delivered in installments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the installments in accordance with these Conditions or any claim by the Buyer in respect of any one or more installment shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4. If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.5. If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.5.1. Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.5.2. Sell the goods at the best price readily available and (after deducting all reasonable storage and selling expenses) charge the Buyer for any shortfall below the price under the Contract.
6.6. Where, after delivery, the Seller may charge a handling charge of 10% of the original invoice cost, plus the cost of carriage.
7. Risk and Property
7.1. Risk of damage to or loss of the Goods shall pass to the Buyer at the time of collection or dispatch from the Seller’s premises, or if the Buyer fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2. Notwithstanding delivery and passing of risk in the Goods, or any other provisions of these conditions the property in the Goods shall not pass to the Buyer until all sums due or owing by the Buyer to the Seller on any account have been paid with cleared funds.
7.3. Until such time as the property in the Goods passes to the Buyer, the Buyer shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property.
7.4. Until such time as the property in the Goods passes to the Buyer, the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of or under the control of the Buyer where the Goods are stored and repossess the Goods.
7.5. Demand for or recovery of the Goods by the Seller shall not of itself discharge either the Buyer’s liability to pay the whole of the price and take delivery of the Goods or the Seller’s right to sue for the whole of the price.
8. Warranties and Liability
8.1. Subject to the conditions set out below the Seller warrants that the Goods at the time of delivery will be free from defects in material and workmanship for a period of 12 months from the date of delivery.
8.2. The above warranty is given by the Seller subject to the following conditions:
8.2.1. The Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
8.2.2. The Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval;
8.2.3. The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
8.2.4. The above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
8.3. Subject as expressly provided in these conditions all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
8.4. Any claim by the Buyer which is based on any defect, as set out in 8.1 above, shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (where the defect of failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the contract.
8.5. Where any valid claim is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price) against return of the Goods in question. The Seller shall have no further liability to the Buyer, save possibly the cost of transport of the replaced goods, and then one way only (Back to Base warranty).
8.6. Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions.
8.7. The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, causes beyond the Seller’s reasonable control: shall include inter alia flood, fire, accident, threat or war, civil disturbance. Acts or bye laws, import or export regulations, strikes, industrial action, breakdown of machinery, difficulties in obtaining raw materials, labour, fuel, parts or machinery.
8.7.1. The Seller may delay delivery or terminate the contract at any time by immediate notice without Liability to the Buyer.
9. Insolvency of Buyer
9.1 This clause applies if:
9.1.1. The Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for a purpose of amalgamation or reconstruction); or
9.1.2. An encumbrance takes possession, or a receiver is appointed of any of the property or assets of the Buyer, or
9.1.3. The Buyer ceases, or threatens to cease, to carry on business, or
9.1.4. The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
9.2. If this clause applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary. Alternatively the Seller may call and enter upon the Buyer’s premises to repossess the Goods in accordance with Clause 7.4 above.
10. Export terms
10.1. In these conditions INCOTERMS means the international rules for the interpretation of trade terms of the International Chamber of Commerce 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.
10.2. Where the Goods are supplied for export from the United Kingdom, the provisions of this clause 10 shall (subject to any terms agreed in writing between the Buyer and the Seller) apply notwithstanding by other provision of these Conditions.
10.3. The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for payment of any duties thereon.
10.4. Unless otherwise agreed upon in Writing between the Buyer and Seller, the Goods shall be delivered
ex-works and the Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979. The Buyer shall be responsible for the costs of carriage, insurance & freight.
10.5. The Buyer shall be responsible for arranging testing and inspection of the Goods at the Seller’s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
10.6. Payment of all amounts due to the Seller shall be made by irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by a bank in the United Kingdom acceptable to the Seller or, if the Seller has agreed in Writing on or before acceptance of the Buyer’s order to waive this requirement, by acceptance by the Buyer and delivery to the Seller of a bill of exchange drawn on the Buyer payable 30 days after sight to the order of the Seller at such branch of the National Westminster Bank in England as may be specified in the bill of exchange.
10.7. The Buyer undertakes not to offer the Goods for resale in any country, or territory other than his own, unless agreed upon in Writing by the Seller.
11. After Sale Servicing
11.1. After sales servicing will be provided by the Seller, or by authorised service centres only appointed by the Seller.
12.1. Any notice required or permitted to be given by either party to the other under these Conditions shall be in Writing addressed to that other party as its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
12.2. No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
12.3. If the parties have entered into the Distributor Agreement in which is contained a number of clauses that pertain to the sale and purchase of goods, then where these terms and conditions and those in the Distributor Agreement do not concur, these terms and conditions shall prevail.
12.4. If any provisions of these Conditions are held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected thereby.
12.5. Any dispute arising under or in connection with these Conditions or the sale of the Goods shall be referred to arbitration by a single arbitrator appointed by agreement or (in default) nominated by the Supplier. The place of arbitration shall be London.
12.6. The Contract shall be governed by the laws of England.