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Terms and Conditions of WELDFAST (UK) LTD.

 

CONDITIONS OF SALE AND DELIVERY

 

1. Meaning of Terms

In these conditions except where the context otherwise requires the following expressions have the following meanings :-

‘Company’ means Weldfast (UK) Ltd.  A company registered in England and Wales under company number 5668641.

‘Buyer’ means the buyer of the goods or services or anyone acting on behalf of the buyer including employees and agents.

‘Conditions’ means the terms and conditions of sale or supply set out in this document.

 ‘Goods’ means and includes all goods supplied and/or manufactured and/or assembled or to be supplied and all services supplied or to be supplied by the Company pursuant to the contract to which these Conditions apply.

‘Admix’ means and includes any process in which the distinctive character or nature of the goods is lost by reason of combination with other goods or materials.

‘New Goods’ means and includes Goods following any process in which the distinctive character or nature of the Goods is lost by reason of combination with other goods or materials.

‘Currency’ means pounds sterling unless otherwise agreed in writing signed by a director of the Company.

‘Price’ means the price of the Goods in the Currency excluding value added tax and any other taxes, levies or duties and excluding any carriage, packing and insurance which may be additional to any contract.

 

2. Terms and Conditions

a) The Company enters into all agreements with the Buyer solely on the basis of these conditions and no conditions of purchase or other conditions whether of general application or otherwise of the  Buyer shall be of any effect notwithstanding that the same appear or purport to appear on any document sent by the Buyer to the Company.

b) No addition to or variation of or exclusion of these Conditions shall have effect unless the Company has assented thereto in writing. Such assent to be signed by a director of the Company.

c) No representation or warranty shall bind the Company unless made in writing signed by a director of the Company and expressly stated to be made in pursuance of this clause (terms and conditions 2c)

d) All orders for Goods shall be deemed to be an offer by the Buyer to purchase Goods pursuant to these Conditions.

e) Acceptance of delivery of the Goods by the Buyer and/or the signature of the Buyer on the Company’s delivery advice note or on any other receipt acceptance note such as a carrier advice note shall be taken as conclusive evidence of acceptance of these conditions.

 

3. Waiver

Any waiver or variation of these Conditions or any representation or warranty made by the Company pursuant to clause 2(c) shall be binding upon the Company only in relation to the particular contracts or purposes specified and shall not affect any other contract between the Company and the Buyer or the applicability of these conditions for any other purpose.

 

4. Exclusion

For the purpose of these Conditions the Company contracts on behalf of itself, it’s servants and agents and insofar as any exclusions or limitations of liability or indemnity hereinafter appear, the same shall be for the benefit not only of the Company but also of it’s servants and agents.

 

5. Prices and Payment

All prices quoted by the Company are exclusive of value added tax or any other taxes, levies or duties, unless otherwise stated.

Unless otherwise agreed payment of the price plus value added tax and any other statutory impositions together with any delivery or other charges payable is due in the Currency in full and without any right of set off, deduction or counter claim, howsoever arising or allegedly arising, on or before the last day of the calendar month which follows the month of the invoice date.

The Buyer may within 28 days of the date of the relevant invoice raise any queries in relation to such invoice. If the Buyer fails to comply with this provision the Buyer shall be conclusively presumed to have accepted the accuracy of the relevant invoice.

No discount, set off or allowance whatsoever will be given to the Buyer unless specifically agreed by the Company in writing signed by a director of the Company.

The Company reserves the right in it’s absolute discretion to refuse to establish a credit facility for the Buyer notwithstanding that a credit account may already have been established and to withdraw any established credit facilities.

Where payment is to be by documentary credit the Buyer shall open an irrevocable documentary credit or a standby credit at a bank approved by the Company in writing to be confirmed by the Company’s bankers under which the approved bank shall be mandated to make a payment against presentation of invoices, packing lists and bills of lading.

Without prejudice to all and any other rights of the Company interest of 2% over the base rate for the time being adopted by the Company’s bankers from time to time shall, at the discretion of the Company, be payable by the Buyer from the due date for payment until payment is actually received by the Company in respect of all and any overdue payments.

In the event of the Buyer failing to comply with the Company’s terms of payment with regard to any contract between the parties the Company reserves the right to discontinue forthwith the supply of any further goods or services.

If the Company has to instruct solicitors or other agents to recover monies owed the Buyer will indemnify the Company in respect of all such fees and costs.

 

6. Delivery

Any time or date stated by the Company for delivery of the goods or part thereof is an estimate only and the Company shall not be liable in any manner whatsoever for any loss or damage whatsoever for failure to deliver or  failure to supply within such time or for any delays in delivery. It is hereby agreed that time is not of the essence for delivery of the goods.

Delivery shall be accepted by the Buyer whenever the Goods are tendered for delivery.

Unless otherwise stated in the purchase order the Goods shall be delivered by the Company to the Buyer at the Buyer’s premises.

The Buyer shall inspect the Goods on delivery and record any alleged damage, defect, shortage in quantity or  failure to comply with description or  sample  on the  Company’s delivery advice note and any other relevant receipt acceptance note. Where a carrier is used to deliver the goods any alleged damage, defect or shortage in quantity must also be recorded on the carrier’s delivery receipt. The Buyer shall also notify the Company within 72 hours of any alleged damage, defect or shortage in quantity or failure to comply with description or sample. After any such notification the Buyer shall afford the Company an opportunity to inspect the goods within a reasonable time following delivery and before any use is made of them.

Any request by the Buyer for the Company to produce proof of delivery shall be made within 28 days of the date of the relevant invoice.

If the Buyer fails to comply with the delivery terms as set out in these conditions the Goods shall be conclusively presumed to be in accordance with the contract and free from any damage or defect which would be apparent on a reasonable examination of the Goods and the Buyer shall be deemed to have accepted the Goods.

If for any reason the Buyer in unable or refuses to accept delivery of the Goods at the time when the Goods are due and ready for delivery the Company may, in it’s absolute discretion and without prejudice to any rights or remedies it may have, store the Goods until their actual delivery at the Buyer’s cost which shall include the cost of any insurance which the Company may in it’s absolute discretion obtain.

If the Goods are delivered by the Company or any agent used by the Company to the Buyer it shall be the responsibility of the Buyer to unload the Goods from the vehicle used for their delivery and to provide sufficient labour and machinery to ensure that the same is done safely and promptly.

 

7.  Returns

No Goods delivered to the Buyer which are in accordance with the contract will be accepted for return without the prior written approval of the Company on terms to be determined at the absolute discretion of the Company.

If the Company agrees to accept any such Goods for return the Buyer shall be liable to pay a handling charge of 15% of the invoice price plus any carriage, packing and insurance costs incurred by the Company with regard to delivery. Such Goods must be returned by the Buyer, carriage paid, to the Company in their original shipping carton and in the same condition as they were delivered. The Buyer will be liable to the Company for the cost of any damage to the Goods while in the possession of the Buyer and while in transit from the Buyer.

Goods returned without the prior written approval of the Company may at the Company’s absolute discretion be returned to the Buyer or stored at the Buyer’s cost, which shall include the cost of any insurance which the Company may in it’s absolute discretion obtain,  without prejudice to any rights or remedies the Company may have.

 

8. Cancellation

Without prejudice to any rights or remedies of the Company cancellation of an order by the Buyer after the placement of an order by the Company for any goods or materials required to fulfil the order with the Buyer or after commencement of work on the manufacture of the Goods will give rise to a further claim for expenditure or costs on the work commenced by the Company and for the price of any materials ordered by the Company.

Any trade discount given for Goods already delivered in anticipation of further deliveries ordered shall be reduced to take into account the cancellation and the amount of such reduction shall be payable by the Buyer forthwith.

 

9. Property

a) The property in the goods will pass when, and not before, all monies owing by the Buyer, whether pursuant to any particular contract or to any other contract between the parties made at any date whatsoever, to the Company shall have been fully paid. That is, it is hereby agreed that title to any Goods supplied by the Company remains with the Company until all monies owing by the Buyer to the Company have been fully paid. Subject to the following provisions of this clause the Buyer shall, at no cost to the Company, as bailee keep the Goods safely and separate from other goods and marked in such a way that they are clearly identified as the property of the Company.

b) Pending payment in full as aforesaid, the Buyer may in the ordinary course of business :

*use the Goods

*admix the Goods with other goods not the property of the Company to make New Good(s)

*sell at full market value the Goods and the New Goods as agent and for the account of the Company and the entire proceeds of such sale shall be held upon trust for the Company and shall not be mixed with other money or be paid into any overdrawn bank account and shall at all times be identified as the Company’s money. Any such use, admixture or sale of the Company’s property shall be by the Buyer acting as principal on the Buyer’s own behalf provided that on the making of such request as is referred to in sub-clause  9 (g) the rights of the Buyer under this sub-clause 9 (b) shall cease.

c) Any admixture by the Buyer of the Goods shall be upon and subject to the following provisions which, for the avoidance of doubt, are expressed and acknowledged to be conditions precedent which must be satisfied before any such admixture may take place:

Before admixture the Buyer shall notify the Company in writing of the Goods the property of the Company to be admixed, (‘the Company’s Goods’), particulars of the New Goods to be made there from, the date of such admixture together with the value of the Company’s Goods, the total value of the Goods to be included in the New Goods and the sale price of the New Goods.

The Buyer hereby undertakes to notify the Company immediately of any variation in the information provided to the Company pursuant to this sub-clause 9(c).

d) The Company shall be entitled to recover the Price plus the cost of carriage, packing, insurance and value added tax notwithstanding that property in any of the Goods has not passed from the Company.

e) The Buyer shall not pledge or in any way charge by way of security for any indebtedness any of the Goods which are the property of the Company or any New Goods which include Goods which are the property of the Company. Without prejudice to any other rights of the Company if the Buyer does so all sums whatever owing to the Company shall forthwith become due and payable.

f) The Buyer undertakes that upon being requested by the Company to do so it shall promptly deliver the prescribed particulars of any particular contract to the Registrar of Companies in accordance with the part XII of the Companies Act 1985 as amended and not oppose and give all due assistance to the Company in the registration of such bills of sale as the Company shall from time to time in it’s absolute discretion require to secure all and any of it’s rights hereunder. Without prejudice to any other rights of the Company if the Buyer fails to do so all sums whatever owing to the Company shall forthwith become due and payable.

g) Until such time as property in the Goods passes from the Company the Buyer shall upon request deliver up such of the Goods as have not ceased to be in existence or resold, to the Company. If the Buyer fails to do so the Company shall be entitled at any time thereafter to repossess any Goods and seize and take possession of any New Goods and for that purpose to enter upon any premises owned, occupied or controlled by the Buyer where the Goods and/or the New Goods are situated and thereafter to sell the same giving credit for the net sale proceeds or salvage value, after deducting all costs and expenses incurred by the Company, against the monies due from and unpaid by the Buyer, including interest.

h) In the event of the net sale proceeds or salvage value exceeding the monies due from and unpaid by the Buyer  to the Company, including interest, the Company shall pay to the Buyer or to it’s order the amount of such excess.

 

10.  Risk

Notwithstanding that property in the Goods has not passed to the Buyer the risk in the Goods shall pass to the Buyer upon collection by the Buyer or delivery by the Company to any agreed delivery location.

The Buyer shall insure and keep insured the Goods to the full Price against all risks to the reasonable satisfaction of the Company until the date that property in the Goods passes from the Company and shall whenever requested by the Company produce a copy of the policy of insurance. Without prejudice to the other rights of the Company, if the Buyer fails to do so all sums whatever owing by the Buyer to the Company shall forthwith become due and payable.

 

11.  Conditions and Warranties

Subject to the conditions of this clause there are no conditions of any contract and the Company makes no representation or warranty whether express or implied, whether by virtue of the Sale of Goods Act 1979 or otherwise, as to whether the Goods correspond with description and/or sample and/or that the Goods are fit for their purpose and/or for any purpose made known to the Company by the Buyer.

Subject to clause 12 the Company warrants that the Goods comply with the contract descriptions stated and that the Goods are of merchantable quality.

 

12.  Liability

a) All and any claims by the Buyer against the Company that ought to be apparent on reasonable inspection must be notified to the Company within 7 days of the delivery of the Goods in connection with which it is alleged the claim arises and in any other case within 7 days of the date on which the matter giving rise to a claim actually becomes or ought reasonably to have become apparent.

b) If no written claim is submitted in accordance with clause 12(a) any claim shall be deemed to be barred and absolutely waived.

c) In no case whatsoever shall the liability of the Company exceed the Price.

d) The Company shall not be liable in any manner whatsoever to the Buyer for any loss of profit, market or of any contract or of any other consequential loss sustained or alleged to be sustained by the Buyer.

e) Prior to the making of any claim the Buyer shall return the Goods allegedly defective to the Company and if accepted by the Company to be defective the Company shall if practicable replace the Goods without charge.

f) In the event of replacement of the Goods the Buyer shall have and hereby acknowledges that it has no further claim whatsoever against the Company.

g) If the Goods have been added to or modified in any way after delivery without the Company’s prior written consent then the Company accepts no liability or responsibility for any defect howsoever arising from the date of such modification or alteration.

h) It is expressly acknowledged and agreed by the Buyer that the limitations and/or exclusions of liability in clauses 6, 7, 11 and this clause 12 are fair and reasonable having regards to :

* the Price of the goods

*any special requirements of the Buyer

* the difficulty of dealing with claims submitted a considerable time after the events allegedly giving rise to tem

* the necessity of the Buyer obtaining insurance cover for the Goods in any event

* the difficult and expense of the Company obtaining adequate insurance cover for the Goods and any potential liabilities, whether contractual or tortuous, arising out of or in connection with the contract for the supply of the Goods

 

13.  Frustration

If the supply of all or any of the Goods shall be prevented by unavailability of the Goods themselves or of any raw material or constituent parts or by any circumstances whatsoever beyond the control of the Company, the Company shall be at liberty to suspend or cancel the contract or that part thereof which is so affected without incurring any liability for any loss or damage arising there from howsoever caused and the provisions of the Law Reform (Frustrated Contracts) Act 1943 or any statutory amendment thereof shall so far as is applicable apply.

 

14. Insolvency

In the event that the Buyer ceases to carry on it’s business or has any distress or execution levied or threatened against any of it’s property or has a winding up petition presented against it or a resolution proposed for it’s winding up or if, for example, a manager receiver, administrative receiver or administrator is appointed of the whole or any part of it’s business or undertaking or in the event that the Buyer has a receiving order made or a bankruptcy petition presented then the Company shall without prejudice to all and any of it’s other rights be entitled forthwith to withhold delivery of any Goods pursuant to any contract between the parties when so ever made and to terminate such contract without any liability whatsoever on it’s part.

 

15. Inspection and Testing

All inspection and testing of Goods required by the Buyer shall be made at the Company’s premises or other place agreed to by the Company. Inspection and testing may be witnessed by the Buyer or it’s representative if required. Charges will be made by the Company for any such inspection and/or testing of an amount agreed by the parties prior to the inspection/ testing time. Should the Buyer or it’s representative fail to attend any scheduled inspection and/or testing these will proceed and be deemed to have been carried out to the satisfaction of the Buyer.

 

16. Promotional Literature and Technical Information

While the Company endeavours to ensure that information contained in it’s brochures, technical literature, price lists, advertising materials or similar items is properly prepared such information is intended solely as an indication of the Goods offered. Nothing contained therein shall constitute a representation or warranty, whether collateral or otherwise, by the Company.

No technical or other advice or information given by the Company, it’s servants or agents shall constitute a representation or warranty by the Company, whether collateral or otherwise.

It is the Buyer’s responsibility to ensure that the Goods are suitable for their intended purpose.

 

17. Intellectual Property

All drawings, calculations, brochures, instructive matter and any other intellectual property furnished by the Company are and shall remain the property of the Company and must not be copied or shown to any third party without the written consent of the Company.

The Buyer shall indemnify the Company against all damages, cost, losses, penalties, claims and other matters whatsoever arising out of the infringement or alleged infringement of any patent, registered design, copyright or other intellectual property or in respect of any passing-off action which may arise out of the Company carrying out work in respect of manufacture, adaption or assembly of any Goods the subject matter of any contract in accordance with the requirements of the Buyer.

 

18. Law and Jurisdiction

Any contract and all matters and all things arising out of any contract entered into by the Company or in any way connected therewith shall be interpreted or construed in accordance with English Law and the parties hereby irrevocably submit to the exclusive jurisdiction of the English Courts.

 

19. Headings

All heading used in these Conditions are for ease of reference only and shall not affect the construction thereof.

 10th June, 2013

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