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Terms & Conditions

METALLISATION LIMITED
 
CONDITIONS OF SALE
 
 
1.   DEFINITIONS:  In these Conditions:
 
“the Buyer” means the person, firm, company or other body (whether corporate or not) who places an order for Goods with the Seller and to whom the acknowledgement of order (if sent) is addressed;
 
“Goods” means the goods (including any installment of the goods or any parts for them) which the Seller is to supply in accordance with these Conditions;
 
“Seller” means Metallisation Limited;
 
“these Conditions” means the 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 authorised representatives of the Buyer and the Seller;
 
“Contract” means the contract for the purchase and sale of the Goods; and
 
“Force Majeure” means, in relation to either party, circumstances beyond the reasonable control of that party (including, without limitation, any strike, lock-out or other form of industrial action).
 
2.  APPLICATION OF CONDITIONS:  Orders are accepted only upon and subject to these Conditions which shall govern the Contract to the exclusion of any other terms and conditions subject to which any such order is made or purported to be made by the Buyer.  No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.  The Seller’s employees or agents are not authorised 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.
 
3.  ESTIMATED DELIVERY DATE:  Any time or date for delivery named by the Seller is an estimate only, and the Seller shall not be liable for the consequences of any delay.  Time for delivery shall not be of the essence unless previously agreed by the Seller in writing.  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 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.
 

If the Buyer fails to take delivery of the Goods within the time agreed for such delivery 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 costs (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.
 
4.  SPECIFICATIONS:  Where specifications are to be supplied, the Buyer shall supply such specifications in reasonable time to enable the Seller to complete delivery within the     period name.  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, damages, costs and expenses 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 Seller’s use of the Buyer’s specification. The Seller reserves the right to make any changes in the specification of the Goods which are required to conform 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.
 

5.  FOREIGN TRADE CONTRACTS:  Where the Goods are supplied for export from the United Kingdom:-
 
  1. unless the context otherwise requires, any term or expression which is defined in or  given a particular meaning by the provisions of Incoterms (as in force at the date    when the Contract is made)  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;
 
  1. 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 the payment of any duties thereon;
 
  1. 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 London  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 60 days after sight to the order of the Seller at such branch of Lloyds Bank PLC in England as may be specified in the bill of exchange or any other terms as agreed in writing with the Seller.
 
6.    PAYMENT FOR THE GOODS:
 
6.1   All Goods are sold on an ex-works basis and accordingly the Buyer shall, in addition to the price, be liable for arranging and paying all costs of transport and insurance. 

6.2   Where the Seller agrees to arrange transport and insurance as agent for the Buyer, the Buyer shall reimburse to the Seller the full costs thereof and all the applicable provisions of this Contract shall apply with respect to the payment of such costs as they apply to payment of the price of the Goods. 

6.3   The price of the Goods is based upon the current rates for the payment of men and materials and the Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price for the Goods to reflect any increase in such rates. 

6.4   The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller. 

6.5   The Buyer shall pay the price of the Goods (without deduction) within the period for payment specified in the Seller’s quotation or acknowledgement of Order (or in default of any period for payment being so specified, within 30 days of the date of the Seller’s invoice).  The time of payment of the price shall be of the essence of the Contract. 

6.6   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;
 
  1. 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 (notwithstanding any purported appropriation by the Buyer; and
 
  1. charge the Buyer interest (both before and after any judgment) on the amount unpaid at the rate of 5% per annum above Lloyds Bank PLC base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).

7.     NO WARRANTY:
 
7.1   The Buyer acknowledges that the Seller is unlikely to be able to satisfy itself as to the potential liability arising as a result of the Buyer’s use of the Goods and accordingly the Buyer acknowledges that it is reasonable for the Seller to restrict its liability under the Contract as set out below. 

7.2   Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. 

7.3   Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions, Restrictions on Statements - Order 1976) the statutory rights of the Buyer are not affected by these Conditions. 

7.4   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 specifications shall be notified to the Seller within seven 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.  If 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. 

7.5   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 Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer. 

7.6   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.   SUSPENSION OF DELIVERIES: Deliveries may be wholly or partially suspended and the time of such suspension added to the original Contract date of delivery in the event of a Force Majeure affecting the Seller.

 
9.  NOTICE OF TERMINATION OR PARTIAL DELIVERY:  In the event of a Force Majeure affecting the Seller, the Seller shall be entitled at any time on notice to the Buyer to make partial deliveries only or to determine the Contract without any claim being made by the Buyer and without prejudice in any case to rights accrued in respect of deliveries already made.

 
10. DETERMINATION OF CONTRACT: If the Buyer shall make default in or commit a breach of this Contract or of any other of his 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 him, or if the Buyer shall be a limited company and any resolution or petition to wind up the Buyer (other than for the purpose of amalgamation or reconstruction) shall be passed or presented, or if a receiver or administrative receiver of the Buyer’s undertaking, property or assets or any part thereof shall be appointed, 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, without prejudice to any claim or right the Seller might otherwise make or  exercise.
 

11.  PASSING OF PROPERTY AND RISK TO THE BUYER:
 
  1.    Risk of damage to (or) loss of the Goods shall pass to the Buyer:-
 
  1. in the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
 
  1. in the case of Goods to be delivered otherwise than at the Seller’s  premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods. 
 
11.2   Notwithstanding 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 for which pay is then due.
 
 
11.3   Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and 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.  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. 


11.4   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 so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the goods. 
 

12.  RAW MATERIALS:  Contracts and orders are accepted subject to the Seller receiving any necessary license to purchase or to use the required raw materials and to the Seller being able to obtain such raw materials.
 

13.   GENERAL:

13.1   The Seller is a member of a group of companies and accordingly the Seller may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Seller. 

13.2   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. 

13.3   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. 

13.4   This contract shall be governed by the Laws of England