1.1. All quotations made, orders accepted and contracts of sale between Thames Diesel Injection Parts Ltd. (“the seller”) and the buyer are subject to these conditions of sale unless the seller specifically varies the same in writing. In the event of any conflict or inconsistency between these conditions and the terms and conditions of any order or acceptance, these conditions shall prevail on the basis that execution of the order or acceptance is execution in accordance with these conditions.
1.2. In the conditions:
"the buyer" means the party, whether person, company, institution, local authority, governmental office or whoever enters into the contract with the seller.
“the contract" means the contract of which these conditions form a part.
"the goods" means the subject of the contract.
2. Quotations & orders
2.1 The acceptance of the sellers tender must be accompanied by sufficient information to proceed with the order forthwith otherwise the seller shall be at liberty to amend tender prices to cover any increase in cost which has taken place after acceptance.
2.2. The placing of an order following the sellers tender shall not be binding on the seller until or unless confirmed by the seller in writing. In the case of orders given verbally by the buyer, whether by telephone or otherwise, the record made by the seller of such order shall be conclusive and binding as to the specifications of the goods involved, the delivery point and delivery date.
2.3. Additions or alterations to orders, however made shall not be binding until confirmed by the seller in writing.
3. Limits of contract
The sellers contract only includes such goods accessories and work as are specified therein.
All tenders are valid for a period of 28 days unless otherwise agreed in writing by the seller, subject to variation in price as covered in section 5 and variation in delivery as covered in section 8. Despatch dates shown in the sellers tender are subject to confirmation on receipt of the buyers order.
5.1. Prices quoted by the seller cover despatch on normal working days between normal working hours and subject to current legislation, the seller shall be entitled to increase the price in any quotation to cover increases in the cost to the seller of materials, parts, transport, labour or any other commodity required for the production or delivery of the goods, occurring between the date of the quotation and the date of delivery.
5.2. Where there has not been a written or verbal quotation the price shall be that determined by the seller at the date of despatch.
5.3. The prices referred to in clauses 5.1 and 5.2 shall be exclusive of value added tax or any other levy, duty or other such charge as applicable under current or future legislation which will be charged, where applicable at the prevailing rate at the time of despatch.
6. Inspection and tests
6.1. Unless otherwise stated the sellers standard quality assurance tests have been carried out only on selected samples of each batch manufactured.
6.2. If tests other than those (if any) specified in the sellers tender, or tests in the presence of the buyer or the buyers representative are required, these will be charged for. In the event of any delay by the buyer in attending these tests, after seven days notification of readiness to proceed, the tests, will proceed in the buyers absence and will be deemed to have been made in the buyers presence.
7.1. Where goods are manufactured in accordance with the contract, the seller will accept no liability for failure to attain any particular performance figures. The buyer assumes responsibility that goods stipulated by the buyer are sufficient and suitable for the buyers purpose.
7.2. The seller can give no warranty as to the suitability of any goods for any specific purpose.
8.1. Any times quoted for despatch are to date from receipt by the seller of a written order to proceed together with all necessary information and drawings and, where required by regulations in any country to which the goods may be exported, any necessary exchange control permissions and a valid import license to enable the seller to put the work in hand. The obtaining of any necessary licenses, permits or any other permissions shall be at the cost and responsibility of the buyer.
8.2. Time for delivery shall not be of the essence of the contract. All such times are to be treated as estimates and whilst the seller shall make all reasonable efforts to maintain delivery schedules the seller shall not be liable for any loss or damage, direct, indirect or consequential whether foreseeable or unforeseeable due to delay in delivery.
8.3 Without limiting the generality of the foregoing the seller shall not be responsible for delays occasioned by any carriers if goods are delivered other than ex works.
9. Variation cancellation and suspension
9.1. In the event of variation of work by the buyers instructions or lack of instructions the contract price shall be adjusted accordingly to cover any increase in expense incurred by the seller.
9.2. The buyer shall only be entitled to cancel the contract on payment of cancellation charges to the seller in accordance with the following:
A) a cancellation charge in respect of handling, administrative and other incurred costs (including a reasonable sum in respect of profits) plus
B) an amount in respect of cancellation charges which may have been imposed on the seller by manufacturers of ancillary equipment, third party contractors and the like, plus
C) the whole price of any equipment made or adapted specially to the buyers specification.
9.3. In the event of suspension of the contract the seller shall be entitled to payments in accordance with 9.2 above.
10. Suitability of goods and materials
10.1. The buyer shall be under a duty to inform the seller of the specific purpose and the precise nature of the conditions and circumstances of the use for which the goods are required and to raise with the seller all questions arising out of any specification or requirement of the buyer in relation to the goods to be manufactured. The seller is entitled to proceed with manufacture on the basis that all such questions have been asked by the buyer and that all such information has been provided as required under the contract.
10.2. Where goods are to be supplied wholly or partly to the buyers specification or incorporating parts or materials of the buyers supply the buyer agrees to produce (at the buyers cost) any pattern, document or detail required for such specification and any part or material as the case may be, forthwith upon being called upon to do so by the seller who shall be entitled to assume that such information is correct.
10.3. In the event of the buyers failure to carry out the foregoing the seller shall be entitled to treat the contract as suspended within the meaning of paragraph 9.3 above.
10.4. The buyer warrants to the seller that any substance to be used in connection with the goods has been delivered to the seller pursuant to paragraph 10.1 and further warrants that any such substance does not have any undisclosed deleterious quality which might affect the performance of the goods.
10.5. The buyer further warrants that his specification, parts and "free issue” materials shall be fit for the buyers purpose and that all information relevant thereto has been or will be given to the seller.
10.6. Part numbers shown in any enquiry, tender, order or in any document or verbal discussion forming part of the contract are for reference purposes only and do not imply or indicate the goods are produced by the original equipment manufacturer or manufacturers sub contractor or that the goods are produced to the original manufacturers specification.
11.1. The seller reserves the right to refuse to execute any order if the arrangements for payment or customers credit rating are not satisfactory to the seller.
11.2. For all purposes connected with this contract, time of payment shall be of the essence and any breach of this condition shall entitle the seller to terminate or suspend the contract forthwith.
11.3. The buyer shall not be entitled to withhold payment or make any set off in respect of goods supplied.
11.4. The prices charged will be those ruling at the date of despatch unless otherwise agreed in writing.
11.5. The buyer shall, unless the seller has expressly agreed to credit terms, pay cash in full with each order. Any credit given to the buyer is given on the following terms and conditions: the buyer is liable to pay for all goods supplied to him by the seller net cash 30 days after date of invoice. All banking charges shall be to the buyers account. Provided that if before delivery is made the seller has reasonable grounds for doubting the buyers intention or ability to pay the seller shall have the right to demand security from the buyer or to take such action including termination or suspension of the contract as may appear suitable to the seller to protect its interests.
11.6 Should the buyer default in payment, for whatever reason, on the due date of any sum, without prejudice to any other right which the seller may have, the seller shall be entitled without any given notice, to be paid compound interest at a rate of 1% per calendar month or part thereof on a pro rata basis on such sum accruing from the due date until full value of the overdue oustanding account is credited to the sellers bank.
11.7 If the buyer shall fail to pay to the seller on the due date any sum due under any contract with the seller or shall have a receiving order made against him or become bankrupt or enter into any agreement or composition with his creditors or being an incorporated company shall have a receiver appointed or pass a resolution for winding up or have any order of the court made against it to any such effect or any other order is made which affects the management of the company or if the buyer shall commit a breach of any obligation under any contract with the seller, the seller may without prejudice to its other rights either suspend or cancel further work or deliveries under this or any other contract with the buyer.
11.8. Where an order for successive deliveries of goods is accepted by the seller each such delivery shall be treated as a separate contract.
11.9. If the seller does not receive forwarding instructions within 14 days after the date of notification that the goods are ready for despatch in accordance with the contract they shall be deemed to have been delivered and shall be invoiced.
12.1. Ownership of goods supplied shall remain with the seller until payment in full has been received for all goods supplied to the buyer or until such time as the buyer has sold any such goods to a customer by way of a bona fide sale without notice of this condition. Pending such sale the goods shall be kept separate from those of the buyer and any third party, properly stored, labelled and insured. Any use of the goods shall be, as between the parties, be deemed to be in the order of the despatch.
12.2. If any payment is overdue in whole or in part the seller may without prejudice to any of its other rights recover and / or resell any of the goods and may enter the buyers premises to do so.
12.3. The buyer shall at all times be in possession of the goods as bailee of the seller and as fiduciary agent and any sale by the buyer shall be on commercially reasonable terms.
12.4. On any such sale the buyer shall sell as principal to any sub purchaser but as between the seller and buyer the latter is to sell as fiduciary agent.
12.5 the buyer shall account for all proceeds tangible and intangible including insuranc proceeds and proceeds of proceeds and all such proceeds shall be kept separate from his own and from those of third parties. Any tangible proceeds shall be properly stored, protected and insured. All such proceeds shall be held as trustee for the seller.
12.6. The seller shall have the power to appropriate payments to such goods and accounts as he thinks fit notwithstanding any purported appropriation by the buyer to the contrary.
13. Delivery risk and storage
13.1. All risk of loss or damage howsoever caused shall pass to the buyer on delivery. Unless otherwise agreed in writing delivery shall be deemed to be completed at the sellers premises on delivery to any carrier. The buyer shall be responsible for comprehensively insuring the goods from the passing of such risk.
13.2. Upon the expiry of 14 days from the sellers notice that the goods are ready for despatch the seller shall be entitled to recover a reasonable charge for storage of all the goods.
13.3. If the seller shall decide to remove the goods pending despatch or collection or to store them or to insure them the buyer shall be bound by such arrangements as if made on the buyers behalf and any costs, charges, fees premiums or expenses thereby incurred shall be charged to the buyer.
14. Damage or loss in transit
14.1. The sellers standard terms of sale for the contract price are "Ex Works", EXW (INCOTERMS 2010). If on the agreement of the seller and buyer the delivery terms are "Carriage and Insurance Paid" CIP (INCOTERMS 2010), the seller will repair or at its option replace free of charge goods damaged or lost in transit provided that in the event of:-
A) damaged delivery, the delivering carriers receipt is noted that the consignment has been received damaged, the seller is advised within 24 hours of delivery with confirmation in writing, with a copy to the carrier within 2 days of delivery, or
B) non delivery in whole or in part, the seller is advised in writing with a copy to the carrier within 2 days of the notified date of despatch if delivery is within the United Kingdom or within 4 days of the scheduled delivery date if the delivery address is outside the United Kingdom.
14.2. The buyer must comply with the appropriate carriers conditions and any liability shall be subject to compliance with those conditions.
14.3. When the buyer or the buyers agent, sub-contractor or freight forwarder nominates his own carrier for collection from the sellers premises or that of the sellers agent or sub contractor or nominates delivery by post other than registered or datapost, the buyer accepts liability for loss or damage in transit.
15. Patent defects on delivery
Patent defects shall be notified to the seller in writing within 3 days of receipt of the goods by the buyer. Otherwise the goods will be deemed to have been delivered in accordance with the contract save as to latent defects.
16. Latent defects on delivery
16.1. Subject to paragraph 15 the seller will make good, or repair, or at its option by supply of a replacement, defects which, under proper use, appear in the goods within a period of six calendar months after the goods have been despatched and arise solely from faulty design (other than a design made, furnished or specified by the buyer) materials or workmanship: provided always that defective parts shall have been returned to the seller if the seller shall have so required.
16.2. The sellers liability under this paragraph shall be in lieu of any warranty or condition implied by law as to the quality or fitness for any particular purpose of the goods and, save as provided herein or by statute cannot be excluded the seller shall not be under any liability whatsoever whether in contract, tort or otherwise in respect of defects in goods delivered or for any injury, whether personal or otherwise, damage or loss resulting from such defects or from any work done in connection therewith.
16.3. In respect of goods not manufactured by the seller which are incorporated into the goods sold by the seller, the seller will pass to the buyer the remaining benefit of the guarantee, if any, which the seller may have received from the supplier of such goods but not so as to impose on the seller a liability greater than that provided for in this contract.
16.4. The seller shall not be liable under the above warranty unless the equipment has been stored, installed, operated and maintained in accordance with the sellers instructions or recommendations, or in the absence of such instructions, in accordance with current good practice.
If at any time any question, dispute or difference whatsoever shall arise between the buyer and the seller upon, in relation to, or in connection with the contract, either may give to the other notice in writing of the existence of such question, dispute or difference, and the same shall be referred to the arbitration of a person to be mutually agree upon.
18. Force majeure
18.1. The seller shall not be responsible for any failure to fulfil any term of the contract insofar as fulfilment has been delayed, hindered or prevented by any circumstances whatsoever which are not within the reasonable control of the seller including, without limiting the generality of the foregoing any industrial disputes or the threat thereof, governmental order, specification or restriction, or compliance with any order request of any national provincial port or other public authority or other public authority or of any person purporting to act for such authority or failure total or in part of any of the sellers existing or contemplated sources of supply of materials or power or means of delivery howsoever such a failure is caused, or civil commotions, acts of war, malicious mischief, theft, fire or explosion.
18.2. Where deliveries are suspended pursuant to the above term of the contract they may be recommenced by the seller and shall be accepted by the buyer as soon as the seller is no longer prevented or hindered from manufacturing supplying or delivering the goods.
19. Limitation of liability
Except as specifically provided in these conditions and save as cannot be excluded by statute the seller shall not be liable to the buyer, whether by way of indemnity or by reason of breach of contract, or of negligence, or breach of statutory duty for loss of use, whether complete or partial, of the goods, or of profit or of any contract, or for any other financial or economic loss buy whomsoever suffered.
Unless otherwise agreed in writing, the contract shall in all respects be construed and operate as an English contract and in conformity with English law.
The headings of these conditions are for convenience only and shall in no way form part thereof.
22. Health and safety at work act 1974
The attention of the buyer is drawn to the provisions of the health and safety at work act 1974. The seller will make available upon request information on the design, construction and installation of its products to ensure that as far as is reasonably practicable they are safe and without risk to health when properly used. It is the responsibility of the buyer to take such steps as are necessary to ensure that the appropriate information relevant to the goods is available to its servants, agents and to any person to whom the buyer supplies them and to any other person the buyer reasonably considers should have knowledge thereof.
All contracts between the buyer and the seller to which these conditions form a part shall be subject to the definitions of standard shipping terms as assigned in incoterms 2010 save insofar as the same may have been varied by these conditions.