Definitions
a) 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.
“Seller” means Nikal Steels Online Ltd
(Registered office – Unit 14 Block 3 Grazebrook Industrial Estate, Hulbert Drive, Dudley, West Midlands, United Kingdom DY2 0XW)
“Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agree in writing between the buyer and the seller.
“Contract” means the contract for the purchase and sale of the goods.
“Writing” includes telex, cable, faxsimile, air transmission, e-mail and comparable means of communication.
b) any reference in these conditions to any provision of a stature shall be construed as a reference to that provision as amended re-enacted or extended at the relevant time.
c) The headings in these conditions are for convenience only and shall not affect their interpretation.
Basis of the sale
a) the seller shall sell and the buyer shall purchase the goods in accordance with any written or oral quotation of the seller, which is accepted by the buyer or any written or oral 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.
b) No variation to these conditions shall be binding unless agreed in writing between the authorized representatives of the buyer and the seller.
c) The seller’s employees or agent are not authorized to make any representations concerning the goods unless confirmed by the seller in writing. In entering into the contract the buyer acknowledges that it does not rely on and waives any claim for breach of any such representations which are not so confirmed.
d) Any advise 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 which is not confirmed in writing by the seller is followed or acted upon entirely at the buyers own risk and accordingly the seller shall not be liable for any such advice or recommendation which is not so confirmed.
e) Any typographical, clerical or other error or emission in any sales literature, quotation price list acceptance of offer invoice or other document or information issued by the seller shall be subject to correction without any liability on the part of the seller.
Orders and Specifications
a) the buyer shall be responsible to the seller for ensuring the accuracy of the terms of any order
(Including any applicable specification) submitted to the buyer and for giving the seller any necessary information relating to the goods within a sufficient times to enable the seller to perform the contract in accordance with its terms.
b) The quantity, quality and description of and any specification for the goods shall be those set out in the seller’s quotation (if accepted by the buyer) or the buyers order (if accepted by the seller).
c) If the goods are to be manufactured or any process is to be applied to the goods by the seller in accordance with a specification submitted by the buyer the buyer shall indemnify the seller against all loss, damage costs and expense awarded against or incurred by the seller in connection with or paid or agreed to be paid by the seller in settlement of any claim for infringement of any patent copyright, design, trademark or other industrial or intellectual property rights of any other person which results from the sellers use of the buyers specification.
d) The seller reserves the right to make any changes in the specification of the goods which are required to confirm with any applicable safety or other statutory requirements or where the goods are to be supplied to the seller’s specification which do not materially affect their quality or performance.
e) 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 profits) costs (including the costs of all labour and materials used) damages charges and expenses incurred by the seller as a result of cancellation.
Prices of the goods
a) The price of the goods shall be the sellers quoted price or where no price has been quoted (or a quoted price is no longer valid) the price listed it the sellers published price list current at the date of acceptance of the order. Where the goods are supplied for export from the UK the sellers published export price list shall apply. All prices quoted 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.
b) 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 increase in the cost to the seller which is due to 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 cost of labour materials or other costs of the 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.
c) Except as otherwise stated under the terms of any quotation or in any price list of the seller and unless otherwise agreed in writing between the buyer and the seller all price are given by the seller on an ex works basis and where the seller agrees to deliver the goods otherwise than at the sellers premises the buyer shall be liable to pay the sellers charges for transport packaging and insurance.
d) The price is exclusive of any applicable value added tax which the buyer shall be additionally liable to pay to the seller.
e) The cost of pallets and returnable containers will be charged to the buyer in addition to the price of the goods but full credit will be given to the buyer provided they are returned undamaged to the seller before the due payment date.
Terms of Payment
a) subject to any special terms agreed in writing between the buyer and the 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 tended delivery of the goods.
b) the buyer shall pay the price of the goods (less any discount to which the buyer is entitled but without any other deduction within 30 days from the end of the calendar month that the invoice for the goods is received by the buyer 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 of payment will be issued only upon request.
c) If the buyer fails to make any payment on the due date then without prejudice to any other right or remedy available to the seller the seller shall be entitled to:
1. Cancel the contract or suspend any further deliveries to the buyer.
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
3. charge the buyer interest on amounts outstanding after any periods of credit have expired at the rate of 4% over HSBC PLC base rate such interest to run from day to day and to accrue after as well as before any judgment and entirely without prejudice to the sellers rights under these conditions, common law or statute.
Delivery
a) Delivery of the goods shall be made by the buyer collecting the goods at the seller’s premises at any time after the seller has notified the buyer that the goods are ready for collection or if some other place of delivery is agreed by the seller, by the seller delivering the goods to that place.
b) 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 unless previously agreed by the seller in writing. The goods may be delivered by the seller in advance of the quoted delivery date upon giving reasonable notice to the buyer.
c) 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 installments shall not entitle the buyer to treat the contract as a whole as repudiated.
d) If the seller fails to deliver the goods for any reason other than any cause beyond the sellers reasonable control or the buyers fault and the seller is accordingly liable to the buyer the sellers 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.
e) 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 buyers reasonable control or by reason of the sellers fault) Then without prejudice to any other right or remedy available to the seller the seller may:
1, store the goods until actual delivery and charge the buyer for the reasonable cost including insurance of storage or
2. Sell the goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses account to the buyer for the excess over the price under the contract or charge the buyer for any shortfall below the price under the contract.
Risk and Property
a) Risk of damage to or loss of the goods shall pass to the buyer
1. In the case of the goods to be delivered at the sellers premises at the time when the seller notifies the buyer that the goods are available for collection or
2. In the case of the goods to be delivered otherwise than at the sellers premises at the time of the delivery or if the buyer wrongfully fails to take delivery of the goods the time when the seller has tended delivery of the goods.
b) Not withstanding delivery and the passing of risk in the goods or any other provision of these conditions the property in the goods shall not pass to the buyer until the seller has received in cash or cleared funds, payment in full of the price of the goods. And all other goods agreed to be sold by the seller to the buyer or which payment is due.
c) Until such time as the property in the goods passes to the buyer shall hold the goods as the sellers fiduciary agent and bailey and shall keep the goods separate from those of the buyer and third parties and properly stored protected and insured and identified as the sellers property. Until that time the buyer shall be entitled to resell or use the goods in the ordinary course of its business but shall account to the seller for the proceeds of sale or otherwise of the goods whether tangible or intangible including insurance proceeds and shall keep all such proceeds separate from any monies or property of the buyer and third parties and in the case of tangible proceeds properly stored protected and insured.
d) Until such time as the property in the goods passes to the buyer (and provided the goods are still in existence and have not been resold) 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 forthwith to enter upon any premises of the buyer or any third party where the goods are stored re-possess the goods.
e) The buyer shall not be entitled to pledge or gain any way charge by way of security for any indebtedness any of the goods will remain the property of the seller but if the buyer does so all monies owing by the buyer to the seller shall (without prejudice to any other right or remedy of the seller) forthwith become due and payable.
f) any claim by the buyer which is based on any defect in the quality or condition of the goods or their failure to correspond with specification 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 or failure was not apparent on reasonable inspection) within a reasonable time after discovery of the defect or failure and he buyer shall be bound to pay the price as if the goods had been delivered in accordance with the contract.
g) Where any valid claim in respect of any of the goods which is based on any defect in the quality or condition of the goods or their failure to meet specification 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 sellers sole discretion refund to the buyer the price of the goods (or a proportionate part of the price) but the seller shall have o further liability to the buyer.
h) Except in respect of death or personal injury caused by the sellers 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 expressed 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 gods or their use or resale by the buyer except as expressly provided in these conditions.
i) The seller shall not be liable to the buyer or be deemed to be in breech of the contract by reason of any delay in performing or any failure to perform any of the sellers obligations in relation to the goods if the delay or failure was due to any cause beyond the sellers reasonable control. Without prejudice to the generality of the foregoing the following shall be regarded as causes beyond the seller’s reasonable control.
1. act of god, explosion flood tempest fire or accident
2. war or threat of war, sabotage insurrection civil disturbance or requisition
3. Act restrictions regulations by-laws prohibitions or measures of any kind on the part of any governmental parliamentary or local authority.
4. import or export regulations or embargoes
5. strikes, lock outs or other industrial actions or trade disputes (whether involving employees of the seller or of a third party)
6. difficulties in obtaining raw materials labour fuel parts or machinery
7. power failure or breakdown in machinery
Indemnity
a) if any claim is made against the buyer that the goods infringe or that their use or re-sale infringes the patent copyright design trademark or other industrial or intellectual property rights of any other person the seller shall indemnify the buyer against all loss damages costs and expenses awarded against or incurred by the buyer in connection with the claim or paid or agreed to be paid by the buyer in settlement of the claim provided that:
- The seller is given full control of any proceedings or negotiations in connection with any such claim.
- The buyer shall give the seller all reasonable assistance for the purposes of any such proceedings or negotiations.
- Except pursuant to a final award the buyer shall not pay or accept any such claim or compromise any such proceedings without the consent of the seller (which shall not be unreasonably withheld).
- the buyer shall do nothing which would or might vitiate any policy of insurance or insurance cover which the buyer may have in relation to such infringement and this indemnity shall not apply to the extent that the buyer recovers any sums under any such policy or cover (which the buyer shall use its best endeavors to do)
- the seller shall be entitled to the benefit of and the buyer shall accordingly account to the seller for all damages and costs (if any) awarded in favour of the buyer which are payable by or agreed with the consent of the buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim and
- Without prejudice to any duty of the buyer at common law the seller shall be entitled to require the buyer to take such steps as the seller may reasonable require to mitigate or reduce any such loss damage costs or expenses for which the seller is liable to indemnify the buyer under this clause.
Insolvency of the Buyer
a) this clause applies if:
- 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 that an for the purpose of amalgamation or reconstruction) or
- an encumbrancer takes possession or a receiver is appointed of any of the property or assets of the buyer or
- the buyer ceases or threatens to cease to carry on business or
- 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.
b) 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 or suspend any further deliveries under the contract or suspend any further deliveries under 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 not withstanding any previous arrangement to the contrary.
Export Terms
a) 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 if 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.
b) Where the goods are supplied for export from the United Kingdom, the provisions of the clause shall (subject to any special terms agreed in writing between the buyer and the seller) apply notwithstanding any other provision of these conditions.
c) The buyer shall be responsible for complying with any legislation or regulation or regulations governing the importation of the goods into the country of destination and for the payment of any duties thereon.
d) Unless otherwise agreed in writing between the buyer and the seller the goods shall be delivered for the air or sea port of shipment and the seller shall be under no obligation to give notice under section 32 (3) of the sale of goods act 1979.
General
a) 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 part as its registered office or principal place of business or such other address as may at the time relevant time have been notified pursuant to this provision to the party giving the notice.
b) 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.
c) If any provision of these conditions is 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 provision in question shall not be affected thereby.
The contract shall be governed by the laws of England.