General Conditions of Sale of Midbrass Limited
1. DEFINITIONS AND INTERPRETATION
1.1. The following definitions shall apply to these Conditions: –
1.1.1. Buyer: the person or firm purchasing Goods from the Seller.
1.1.2. Buyer’s Specification: any specification for the Goods, including any related plans and drawings supplied by the Buyer that is agreed in writing by the Buyer and the Seller.
1.1.3. Conditions: the terms and conditions set out in this document as amended from time to time as set out in clause 12.1.
1.1.4. Contract: the contract between the Seller and the Buyer for the sale and purchase of the Goods in accordance with these Conditions.
1.1.5. Delivery: delivery of the Goods at the Buyer’s nominated premises or the collection of the Goods from the Seller’s premises whichever is applicable as specified in the Order.
1.1.6. FOB: free on board, as defined in the Incoterms.
1.1.7. Force Majeure Event: means an event beyond the reasonable control of the relevant party including: strikes; lockouts; trade disputes; shortage of raw materials; and Government action, which prevent the manufacture, Delivery or acceptance of the Goods.
1.1.8. Goods: means the products to be supplied pursuant to the Order.
1.1.9. Incoterms: means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when a Contract is made.
1.1.10. Order: the Buyer’s order for the Goods as set out in the Buyer’s order form.
1.1.11. Other Goods: means any products sold by the Seller to the Buyer which have not been sold to a third party or disposed of by the Buyer.
1.1.12. Purchase Price: the price of the Goods in accordance with clause 3.1.
1.1.13. Seller: Midbrass Limited (Registered in England and Wales with Company Number: 01058858).
1.1.14. Standard Price: the price detailed on the Seller’s website as at the date of the Order.
1.2. A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and a reference to that person or a party includes their personal representatives, successors or permitted assigns.
1.3. A reference to a statute or statutory provision is a reference to such statute or provision together with any subordinate legislation as either may be amended or re-enacted from time to time.
1.4. A reference to writing or written includes faxes and emails.
1.5. These Conditions shall be considered as drafted with the joint participation of the parties and no provision of these Conditions shall be construed adversely to a party on the ground that such party was responsible for the preparation of these Conditions or that provision.
2.1. Where a period for Delivery has been indicated by the Seller, the Buyer can normally expect to take delivery within that period. However, this is an estimate only and the Seller shall not be liable for any delay (or for any consequences of any delay) and time shall not be of the essence for Delivery. Where a period of Delivery is extended or delayed with or without the prior knowledge of the Buyer, the Buyer shall accept delivery and any delay in Delivery shall not give the Buyer a right to refuse delivery or cancel the Order.
2.2. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
2.3. The Seller shall be permitted to deliver the Order in parts and each Delivery shall constitute a separate Contract and failure to deliver any one or more instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
2.4. If a Force Majeure Event occurs Delivery may be suspended and the Seller or Buyer shall promptly and without undue delay give notice in writing to the other party, and the original time for Delivery shall be extended by the period of any such suspension. If such suspension continues for longer than 90 days, either party shall have the option but not the obligation to cancel the Order.
2.5. Neither party shall be liable for any loss caused to the other party by such suspension or termination arising under clause 2.4 except that where the Seller has incurred expenditure due to the special nature of the Order, the Seller shall be reimbursed for such expenditure.
3.1. The Purchase Price shall be: –
3.1.1. the Seller’s quoted price; or
3.1.2. where no price has been quoted (or a quoted price is no longer valid), the Standard Price.
3.2. The Seller reserves the right, by giving notice to the Buyer at any time before Delivery, to increase the Purchase Price to reflect any increase in any costs of the Seller (such as alteration of duties, increase in the cost of manufacturing or buying the Goods or relevant parts, the cost of Delivery to include any change in the delivery date, or a change in the quantity or specification of the Goods).
3.3. The Purchase Price is inclusive of Delivery but exclusive of applicable value added tax which the Buyer shall be additionally liable to pay to the Seller.
3.4. Any query relating to the Purchase Price should be referred by the Buyer to the Seller within 5 days of receipt by the Buyer of the Seller’s written confirmation of the Order, failing which the Purchase Price shall be deemed to be accepted by the Buyer for the purposes of the Seller raising an invoice in accordance with clause 10.1.
4. CLAIMS IN RESPECT OF DELIVERY SHORTAGES AND DISCREPANCIES
4.1. Unless claims for short weight are made in writing to the Seller as required under clause 6.7.1, the Seller shall not be liable. If the Seller delivers up to and including 10% more or less than the quantity of the Goods ordered the Buyer may not reject them.
5.1. The Buyer shall indemnify the Seller against all losses, damages, costs and expenses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by the Seller in connection with the Buyer’s Specification including but not limited to an infringement of a third party’s intellectual property rights which results from the Seller’s use of the Buyer’s Specification.
6. WARRANTIES AND LIABILITY – THE BUYER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
6.1. Subject to the conditions set out below the Seller warrants that the Goods will: –
6.1.1. correspond with the Buyer’s Specification (or where there is no Buyer’s Specification the description or specification of the Goods provided by the Seller) at the time of Delivery; and
6.1.2. be free from defects in material and workmanship for a period of 12 months from the date of Delivery.
6.2. The Seller shall not be liable for Goods’ failure to comply with the warranty set out in clause 6.1 in any of the following circumstances: –
6.2.1. the defect in the Goods arises from the Buyer’s Specification;
6.2.2. the defect arises 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;
6.2.3. the Buyer has not paid the Purchase Price for the Goods in full in accordance with the provisions of clause 10;
6.2.4. the Goods differ from any specification or description of the Goods (including the Buyer’s Specification) as a result of changes made to ensure that they comply with applicable statutory or regulatory requirements;
6.2.5. the Seller has not been notified of the defect within 3 days of Delivery where such defect is apparent on a visual inspection of the Goods; and
6.2.6. if the Seller has not been notified within a reasonable period of time after discovery of the defect and in any event not more than 6 months from the date of Delivery where such defect is not apparent on a visual inspection of the Goods.
6.3. The Seller’s total liability to the Buyer in respect of all losses arising under or in connection with the supply and purchase of the Goods, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall be limited to repair, replacement or refund of the Goods, any such remedy being at the sole discretion of the Seller.
6.4. In no circumstances shall the Seller’s liability to the Buyer exceed 1.5 times the Purchase Price.
6.5. Subject to 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.
6.6. 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 (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever whether caused by the negligence of the Seller, its employees or agents or resale of the Goods by the Buyer.
6.7. Notwithstanding clause 9.1, the Buyer shall have no claim in respect of loss or damage in transit, or shortage of delivery, unless a separate notice in writing has been given to the courier and the Seller: –
6.7.1. within 3 days of Delivery of the Goods; or
6.7.2. in the case of loss in transit within 10 days of the date of consignment.
6.8. Goods accepted without being checked must be signed for “unexamined” on the courier’s delivery document.
6.9. The Buyer acknowledges that: –
6.9.1. it has read and fully understood the limitations and exclusions of the obligations and liabilities of the Seller set out in these Conditions;
6.9.2. it has freely agreed to them;
6.9.3. they are reasonable and will form the basis for setting the Purchase Price of the Goods;
6.9.4. it freely accepts the risks associated with them; and
6.9.5. it is able to insure itself against some or all of those risks should it so desire.
7. BASIS OF THE SALE AND ORDERS
7.1. Orders are accepted by the Seller only upon and subject to these Conditions.
7.2. The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in writing. By placing an order for the Goods, the Buyer acknowledges that it does not rely on any such representations which are not so confirmed.
7.3. 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 which is not confirmed in writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
7.4. Any typographical, clerical or other error or omission 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.
7.5. No Order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’s authorised representative. For the avoidance of doubt, a quotation for the Goods given by the Seller shall not constitute an offer.
7.6. The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including any Buyer’s Specification) submitted by the Buyer, and for giving the Seller any necessary information in relation to the Goods and the Buyer’s Specification within a sufficient time to enable the Seller to comply with its obligations as detailed in these Conditions.
7.7. The quantity, quality and description for the Goods shall be those set out in the Order.
7.8. The Seller reserves the right to make any changes to the Buyer’s Specification or description of the Goods which are required to conform with any applicable statutory or EC requirements. Where the Goods are to be supplied to the Seller’s specification or description the Seller reserves the right to make any changes which do not materially affect their quality or performance.
7.9. 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, damages, charges and expenses incurred by the Seller as a result of cancellation.
8. DETERMINATION OF CONTRACT
8.1. If the Buyer shall make default in or commit a breach of the Contract or any other of its obligations to the Seller, or if any distress or execution shall be levied upon the Buyer’s property or assets, or if the Buyer shall make or offer to make any arrangement or composition with creditors or commit any act of bankruptcy, or if any petition or receiving order in bankruptcy shall be presented or made against the Buyer, or if the Buyer shall be a limited company and any resolution or petition to wind up such company’s business (other than for the purpose of a solvent amalgamation or reconstruction) shall be passed or presented, or if a receiver of such company’s undertaking, property or assets or any part thereof shall be appointed, or if the Buyer ceases or threatens to cease to carry on business, the Seller shall have the right forthwith to determine any Contract then subsisting and upon written notice of such determination being posted by it to the Buyer’s last known address any subsisting Contracts shall be deemed to have been determined and, without prejudice to any claim or right the Seller might otherwise have, all sums payable by the Buyer to the Seller shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
9. RISK AND TITLE – THE BUYER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE
9.1. Risk in the Goods shall pass to the Buyer on Delivery.
9.2. Title to the Goods shall not pass to the Buyer until the Seller receives payment in full (in cash or cleared funds) for the Goods and all other sums which are or which become due to the Seller from the Buyer for the Goods.
9.3. Until title to the Goods has passed to the Buyer in accordance with clause 9.2 the Buyer shall: –
9.3.1. store the Goods separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller’s property; and so that the order number and order date of the Goods are clearly displayed and identifiable;
9.3.2. not remove, deface or obscure any identifying marks or packaging on or relating to the Goods; and
9.3.3. maintain the Goods in a satisfactory condition and keep them insured on the Seller’s behalf for their full price against all risks with an insurer that is reasonably acceptable to the Seller. The Buyer shall obtain an endorsement of the Seller’s interest in the Goods on its insurance policy, subject to the insurer being willing to make the enforcement. On request the Buyer shall allow the Seller to inspect the Goods and the insurance policy.
9.4. Subject to clause 9.5 the Buyer may resell or use the Goods in the ordinary course of business (but not otherwise) before the Seller receives payment for the Goods. However, if the Buyer resells the Goods before that time: –
9.4.1. it does so as principal and not as the Seller’s agent;
9.4.2. title to the Goods shall pass from the Seller to the Buyer immediately before the time at which resale by the Buyer occurs; and
9.4.3. the Buyer shall hold all proceeds of sale of the Goods on trust for the Seller until such time as payment is made in accordance with clause 10.
9.5. If, before title to the Goods passes to the Buyer, the Buyer becomes subject to any of the events listed in clause 8.1, then, without limiting any other right or remedy the Seller may: –
9.5.1. require the Buyer to deliver up the Goods to the Seller; and
9.5.2. may enter any premises of the Buyer or of any third party where the Goods are stored and recover the Goods.
9.6. Without prejudice to any other right or remedy available to the Seller under these Conditions or by law in the event the Goods have been sold to a third party in accordance with clause 9.4 and the Buyer fails to pay any sums due to the Seller in accordance with clause 10.2 the Buyer hereby grants a lien to the Seller over the Other Goods and the Seller may enter the Buyer’s premises or the premises of any third party where the Buyer stores any Other Goods and recover any Other Goods up to the value of all sums outstanding from the Buyer to the Seller.
9.7. The Buyer shall be responsible for and indemnify the Seller for all costs, losses and expenses (including any legal fees or other professional expenses) incurred by the Seller in enforcing the provisions of this clause 9.
9.8. Where goods are sold FOB the responsibility of the Seller shall cease immediately when the Goods are placed on board ship or other conveyance, and the Seller shall be under no obligation to give the Buyer notice specified in Section 32(3) of the Sale of Goods Act 1979.
10.TERMS OF PAYMENT
10.1. 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 Buyer wrongfully fails to collect the Goods or accept Delivery, in which event the Seller shall be entitled to invoice the Buyer for the Goods at any time after the Seller has notified the Buyer that the Goods are ready for collection or available for Delivery. Each invoice shall specify the order number as allocated by the Seller.
10.2. The Buyer shall pay invoices in full and in cleared funds by the end of the month following the month of invoicing (without set-off or counterclaim). If the Buyer fails to make a payment when due then, without limiting any other remedy available to the Seller, then interest may be charged on overdue amounts, on a daily basis, at 4% above the UK base rate, as specified by the Bank of England from time to time.
10.3. Should the Buyer become overdue on any credit account provided by the Seller, payment for ALL Goods supplied on credit shall become immediately due on demand, overriding any previous credit arrangements and the Seller shall be entitled to cancel all Contracts or suspend further deliveries to the Buyer.
10.4. The Seller shall be entitled to recover the Purchase Price, notwithstanding 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 Purchase Price shall be of the essence of the Contract.
10.5. Should the Seller be required to enforce these Conditions against the Buyer (including, without limitation, to recover the Purchase Price of the Goods), then the Buyer shall indemnify the Seller against all costs and expenses (including professional and legal costs and expenses on a full indemnity basis) suffered or incurred by the Seller arising out of or in connection with the Seller enforcing these Conditions.
11.ALTERNATIVE DISPUTE RESOLUTION
11.1. The parties shall consider using alternative dispute resolution techniques for any dispute or difference arising out of or in connection with the Contract before seeking a remedy through the courts.
12.1. The Seller shall have in its sole discretion the absolute right to vary or amend these Conditions as it sees fit from time to time.
12.2. Unless expressly accepted in writing by the Seller, any qualifications or amendments to these Conditions contained in any written or printed document of the Buyer shall be deemed to be inapplicable.
12.3. Where the Seller acts as a data controller (as defined in the General Data Protection Regulation ((EU) 2016/679) or any successor legislation to it), it shall do so in accordance with its privacy notice. The Seller’s privacy notice is available on request and may also be viewed on its website at www.midbrass.co.uk.
12.4. If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 12.4 shall not affect the validity and enforceability of the rest of the Contract.
12.5. If any provision or part-provision of these Conditions is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
12.6. A waiver of any right or remedy under the Contract or law is only effective if it is in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
12.7. Contracts shall be interpreted in accordance with and governed by the laws of England. Subject to clause 11.1, the Buyer agrees to submit to the exclusive jurisdiction of the English courts.