ZAUN LIMITED TERMS & CONDITIONS OF SALE
1.1 In these conditions “the Seller” means Zaun Limited Steel Drive, Wolverhampton. WV10 9ED (“the Registered Office”), “the Premises” means the Registered Office or any other property owned, leased, rented or otherwise used by the Seller during its normal course of business and “the Buyer” means any person placing an order, with the Seller for the purchase or supply of goods or the provision of services (“Goods”)
1.2 It is the Buyers obligation to acquaint itself and to comply with all applicable requirements and restrictions imposed by governmental and other authorities or corporations relating to the possession or use of the Goods. The Buyer will use all reasonable efforts to ensure that any subsequent user or purchaser of the Goods will acquaint itself and comply therewith and will indemnify the Seller against any liability it may occur in consequence of the Buyer or a subsequent user or purchaser to which it has sold the Goods failing to comply therewith
2.1 All orders accepted by the Seller and all Goods supplied by the Seller are subject to these conditions and to none other unless expressly accepted in writing and signed by a Director of the Seller and any other terms, conditions or provisions whether proposed by the Buyer orally or in writing shall be of no effect
2.2 No terms as to the nature, quality or fitness of the Goods or their conformity with any sample shall be pert of any contract between the Seller and the Buyer or become a collateral term thereof save as expressly agreed by the Seller in writing and no such term shall be implied by law or otherwise
2.3 The contract comprised by these conditions and the particulars shown upon the Seller’s quotation and Acceptance of Order Forms (“the Contract”) shall comprise the entire contract between the Seller and the Buyer. No director, employee, agent, representative or consultant of the Seller is authorised to make any representation on behalf of the Seller in respect of any matter to which this Contract relates and no representation shall impose any obligation upon the Seller whether in respect of negligence or otherwise. Any representation made by or on behalf of the Seller prior to the date hereof is hereby expressly withdrawn
2.4 The Seller’s offers, estimates and quotations do not constitute a contract. An order is only accepted by the Seller and a contract only comes into existence with the Buyer once the Seller has –
(a) received the Buyer’s order within the time specified in the Seller’s Quotation Form (if one is issued); and
(b) despatched to the Buyer the Seller’s Acceptance of Order Form
and until such time the Seller shall be under no obligation to the Buyer
2.5 Any quotation issued by the Seller is made ex works Wolverhampton – England and FOB UK port for international sales. Quoted prices do not include further packing, loading, carriage, insurance and erection charges or site preparation work, such charges being payable in addition to quoted prices, unless stated as separate items in a quotation.
2.6 Any quotation issued by the Seller is subject to satisfactory trade and credit references and shall remain open to placement of order (subject to paragraph 2.4 above) for 14 days. All quotations are subject to review for errors and omissions and to alteration or withdrawal without notice
2.7 The Seller reserves the right to reject any order requesting supply of only part of the subject matter of a quotation
2.8 All specifications, drawings, and schedules of properties or dimensions supplied by the Seller to the Buyer shall remain the Seller’s property, and may not be disclosed to or used by a third party without the Seller’s consent. Such material, together with information contained in the Seller’s publicity material, advertisements and catalogues is for information only and, unless specifically stated in this Contract shall not form part of this Contract. Specifications, drawings, literature and statements as to dimensions, suitability, performance or otherwise issued by the Seller in connection with the Goods are offered in good faith and for guidance purposes only. Such matters are intended to be approximate only and shall not be taken to apply to the Goods. No Goods shall be supplied subject to any condition or shall carry any guarantee or warranty as to dimensions, quality, fitness, performance or suitability. The Buyer is solely responsible for the correct selection of Goods ordered from or offered by the Seller and the Buyer shall not be entitled to rely on any drawings, recommendations representations or assistance offered by the Seller relating to the Goods. The Buyer shall rely on its own independent expertise as may be available to the Buyer or other technical sources independently available to the Buyer
2.9 The Seller may sub-contract, assign the benefit of or transfer any obligation contained in this Contract
2.10 All tools, dies and moulds used in the production of the Goods shall become or remain the property of the Seller
3.l The Seller shall endeavour to maintain prices given on quotation or acceptance of order but reserves the right to vary its prices without notice to take account of changes in the Seller’s costs and all Goods will be charged at prices ruling at the time of delivery
3.2 The Seller shall, in particular, have the right to increase prices to reflect any increase in costs arising after the date of quotation or acceptance of order as a result of
(a) any alteration in or addition to the Buyers requirements, which Shall include, without limitation, any variation to quantity ordered or to delivery rates.
(b) the Buyer’s instructions or lack of instructions.
(c) any interruptions, delays, overtime work, mistakes, alterations arising from the work of other contractors found to be outside agreed tolerances, delays caused by other contractors and any other cause for which the Seller is not directly responsible.
(d) any increase in any tax, duty or levy (including VAT) imposed on goods or services or fluctuations in foreign exchange rates, which affect prices in any manner
3.3 The prices given on quotation do not include any applicable VAT or other taxes, which may be chargeable in connection with the supply of the Goods to the Buyer. The cost of such VAT and/or taxes will be added to the prices given on quotation.
4.1 Delivery shall be affected in the manner specified in the Seller’s quotation or Acceptance of Order Form.
4.2 The Seller shall use its best endeavours to deliver the Goods as specified but shall be under no liability whatsoever for delay in delivery or failure to deliver from any cause including negligence. Time shall not be of the essence in relation to delivery.
4.3 If this Contract is for the purposes of the Buyers blanket purchasing order or orders with scheduled call-off deliveries, then the following provisions shall apply to any scheduled deliveries which forms part of this Contract (“a Schedule”)
(a) The Buyer shall not be entitled to cancel or request any variation (whether in respect of quantity, date of delivery or otherwise) to the first three months deliveries specified on any Schedule and
(b) the Seller may at it’s discretion consider a request from the Buyer for a variation to later deliveries which are contained on any Schedule provided that the Buyer gives no less than thirty days written notice of the request for such variation.
4.4 If the Buyer agrees to collect the Goods from the Premises, delivery shall be effected and risk shall pass when the Goods are handed to the Buyer at the Premises. The Seller will notify the Buyer when the Goods are ready for collection and the Buyer agrees to collect the Goods within three working days of such notice
4.5 If the Seller agrees to deliver (or to arrange delivery of) the Goods to the Buyer’s premises, delivery shall be effected and risk shall pass when delivery is tendered at the Buyer’s premises during normal working hours, whether or not delivery is accepted.
4.6 If the Seller agrees to deliver the Goods FOB named United Kingdom port, the following provisions shall form part of this Contract:
(a) The Buyer will at his own expense charter a vessel or reserve the necessary space on board a vessel (“the Vessel”) and give the Seller notice of its name, loading berth and loading dates in accordance with the terms of this Contract
(b) The Seller shall deliver the Goods on board the Vessel on the date or within the period agreed and delivery shall be affected and risk in the Goods shall pass to the Buyer when the Goods have passed the Vessel’s rail at the named port of shipment.
(c) The Seller will bear all costs relating to the carriage of the Goods incurred prior to their passing the Vessels rail and will at its expense obtain any export licence or governmental authorisation needed for the export of the Goods from the United Kingdom and the Buyer will provide the Seller at its expense with any documentation or information needed therefore
(d) The Buyer will bear all costs relating to the carriage of the Goods incurred after passing the Vessel’s rail and will at its expense obtain any import licence or other governmental authorisation needed for the import of the Goods into countries of transit or destination. The Buyer will furnish details thereof to the Seller, which until receipt of such information will not be obliged to deliver the Goods.
4.7 Failure by the Seller to make part delivery in the case of any agreement for delivery in instalments shall not entitle the Buyer to cancel or suspend this Contract or reject subsequent deliveries.
4.8 The Buyer will indemnify the Seller against any liability or costs it may incur on account of the Buyer failing to perform his obligations under this paragraph 4
4.9 The Seller does not supply Goods on approval. Goods are not returnable except with the express written agreement of the Seller and on terms (inter alia) that the Buyer shall bear return transport and other costs and all risks of loss, damage and deterioration unless and until the Seller shall at its sole discretion receive and accept redelivery of the returned Goods.
5. Property and Risk
5.1 The Goods shall remain the property and in absolute ownership of the Seller until the Buyer has paid in full all amounts owed by the Buyer to the Seller (including VAT) in respect of the Goods or any of them. Unless and until such payment is made the Seller may at any time request the return of the Goods or any of them which have not been paid for and which are in the possession or control of the Buyer who shall thereupon hold them at the Seller’s order.
5.2 The risk in the Goods will pass to the Buyer upon delivery in accordance with paragraph 4 above.
5.3 The Buyer shall keep and store the Goods separately and in such a manner as to enable them to be identified as the Seller’s property and shall keep them in good condition and shall maintain full insurance in respect thereof on the Seller’s behalf in an amount which is not less than the price payable to the Seller thereof and all the proceeds of such insurance shall be held on trust for the Seller.
5.4 The Buyer shall have a licence to sell the Goods in the ordinary course of business provided always that
(a) any such sale shall be as principal and the proceeds of any such sale shall be for the Seller’s account alone and shall be paid to the Seller forthwith and pending payment shall be held on trust for the Seller in a separate bank account, and
(b) any such sale shall only be permitted until the happening of one or more of the events referred to in sub-paragraph 5.5 below.
5.5 The Seller may by written notice at any time and at the Seller’s sole discretion terminate the licence conferred on the Buyer by sub-paragraph 5.4 above and, in particular but without limitation, may so terminate the licence whether payment has become due or not and also in the event that distress or execution is levied against any of the Buyer’s assets or if a judgement against the Buyer remains unsatisfied for more than seven days or if a receiver is appointed over any of the Buyer’s assets or if a winding-up petition is presented against the Buyer or if a resolution is passed for the winding-up of the Buyer (otherwise than for the purposes of amalgamation or reconstruction)
5.6 The Seller may repossess the Goods at any time and for this purpose the Buyer hereby grants to the Seller the irrevocable licence to enter upon the Buyer’s premises and to remove the Goods and all costs incurred by the Seller in repossessing such unpaid items shall be borne by the Buyer.
5.7 Notwithstanding any repossession of the Goods, the Buyer shall remain liable to pay the price for them
5.8 For the purposes of this paragraph 5 “the Goods” shall mean all goods comprised in each of the Seller’s invoices against the Buyer, each such invoice being treated as giving rise to a separate agreement
5.9 Each of the above sub-paragraphs shall be construed independently of, and shall be in no way limited by reference to, any other sub-paragraph and if any of the above provisions are held to be invalid for any reason but would be valid if part of the wording in the same or another sub-paragraph was deleted or modified, then such provision shall apply with such modification as may be necessary to make it valid and enforceable
6.1 Time of payment is of the essence of this Contract and all payments shall be made at the Registered Office (unless otherwise requested by the Seller) and in the manner stipulated by the Seller.
6.2 If requested by the Seller at any time during the continuance of this Contract, the Buyer will open a confirmed irrevocable letter of credit for the payment for the Goods on terms satisfactory to the Seller, or make such other provision for the payment as the Seller requests
6.2 The Buyer shall make full payment to the Seller of the invoice price no later than the 15th day of the month following the date of invoice
6.3 The Seller shall have the right to invoice the Buyer in respect of a partial delivery of the Goods to be supplied under this Contract. The Buyer shall make full payment thereof within the period specified at sub-paragraph 6.2 above
6.4 If payment is not made in full on the due date, interest shall thereafter be payable on so much as is from time to time outstanding at the rate of 2% per month compounded monthly until payment
6.5 The Buyer shall not be entitled to withhold payment of any invoice by reason of any right of set off or any claim or dispute with the Seller, whether relating to the quality or performance of the Goods or otherwise.
6.6 The Seller reserves the right to suspend delivery where it reasonably apprehends that the Buyer will not make payment in accordance with this paragraph 6. All orders are accepted subject to the Seller’s continuing reasonable approval of the Buyer’s creditworthiness.
6.7 The Seller shall have a lien on all material goods and all property for all charges of whatever nature incurred and/or due in respect thereof and in addition all materials goods or property in the custody and/or control of the Seller shall be subject to a general lien for money’s due from or claims or charges against the Buyer on any account whatsoever and the said materials, goods or property may be sold by the Seller either in whole or in part without notice by whatever method that may be determined by the Seller to satisfy such lien or liens.
7. Storage and Carriage
7.1 If the Buyer does not accept delivery of the Goods in accordance with paragraph 4 above the Seller may arrange for the storage of the Goods on the Buyer’s behalf but without any liability for any loss or damage occurring after that date, and the Buyer agrees to pay as an addition to the price all reasonable charges for storage, insurance and transport occasioned by failure to take delivery.
7.2 The Seller will not be liable for any loss or damage to the Goods in transit or for any shortage on receipt of the Buyer (unless the Goods are collected by the Buyer from the Premises) but will endeavour to pass on to the Buyer any benefit of any claim it may have against the carrier, provided the Seller is notified of the claim within such time limit as the carrier may impose and in any event within seven days.
8.1 The Seller offers no warranty in respect of Goods where they consist of the goods, materials or services of the Seller’s suppliers, its subcontractors or any other third parties. The Seller may at its sole discretion assign the benefit of such warranties (if available) and/or other related rights (if any) as are available to first users of manufactured goods factored by the Seller but not of the Seller’s own manufacture.
8.2 The Seller warrants Goods of its own manufacture and its own services to be free from defects in workmanship. The Seller’s liability does not extend to consequential loss howsoever arising and the Seller’s entire liability under this warranty is limited to the Seller’s election to repair or replace free of charge any parts of Goods which are found by the Seller on inspection to have been defective in workmanship. The Buyer shall provide full and prompt facilities to the Seller to complete this inspection. This warranty is subject to the following limitations:
(a) The Seller shall have no obligation for defects arising from fair wear and tear or corrosion or to make good faults or damage arising from inappropriate use or treatment or exposure to corrosive substances
(b) Each warranty shall apply only to the Seller’s original customer
(c) All warranty claims not notified in detail and in writing to the Seller within four weeks from the date of delivery of the Goods shall be deemed to have been waved
8.3 Save as provided herein and (solely in relation to a sale or supply of Goods where the United Kingdom Unfair Contract Terms Act 1977 applies) with the exception of liability for death or personal injury directly attributed to the Seller’s negligence, the Seller shall be under no liability whatsoever for any defect of quality, shortfall in quantity, breach of specification, consequential damage, injury, loss or expense whether arising directly from the Supply of the Goods or any other matter complained of in relation to the Goods however caused whether arising from negligence or otherwise.
9. Patents etc. Infringement
The Seller shall (in lieu of all other liability to the Buyer for loss where patents, trademarks, registered designs and similar rights have been infringed by use or sale of the Goods) indemnify the Buyer against claims (including the costs thereof) by owners or licensees of United Kingdom patents and registered designs published at the date of this Contract for infringement thereof by use or sale of the Goods provided:
(a) this indemnity shall not extend to infringements resulting from
(i) use or adoption by the Seller of the Buyer’s parts, designs or specified instructions, or
(ii) use or sale of the Goods in combination with other items where, but for such combination, infringements would not have occurred, or
(iii) use or sale in a manner or for a purpose not disclosed to the Seller before the date of this Contract
(b) the Buyer shall immediately inform the Seller in writing of, and admit no liability for claims for infringement, shall make no settlement and shall permit the Seller alone (and at the Seller’s expense) to deal with such claims (the Buyer providing, at the Buyer’s expense, all assistance reasonably requested for this purpose by the Seller)
10. Copyright and Confidentiality
The copyright and the confidential information in the Goods and in the Seller’s know-how, specifications, drawings and other information (whether oral or in writing) furnished to the Buyer for the purposes of this Contract shall at all times remain vested in the Seller and neither they nor (where applicable) their contents shall be used without the Seller’s express written consent for any purpose other than that for which they were furnished. Upon termination of this Contract for any reason the Buyer shall cease to use, and shall return to the Seller upon request, all such know-how, specifications, drawings and other information insofar as they relate solely to Goods previously supplied by the Seller and paid for in full by the Buyer.
11. Determination of Contract
If the Buyer shall break any provision of this or any other Contract with the Seller, or if distress or execution is levied against any of the Buyer’s assets or if judgement against the Buyer remains unsatisfied for more than seven days or if a receiver is appointed over any of the Buyer’s assets or if a winding-up petition is presented against the Buyer or if a resolution is passed for the winding-up of the Buyer (otherwise for the purposes of amalgamation or reconstruction) or if the Buyer shall in the Seller’s reasonable estimation appear unable to meet its obligations as they fall due, the Seller may (without prejudice to any other claim or remedy) suspend performance of, or determine this or any other Contract with the Buyer by written notice and shall be entitled to payment for the Goods already delivered, and for work in progress at the Seller’s usual rate.
12. Force Majeure
The Seller shall not be liable in any way for loss, damage or delay consequent upon strikes, lock-outs, shortage of labour or materials, disputes, prohibitions of imports, delays in delivery of goods or services of sub-contractors, fire, theft, storm, war, civil commotion, Act of God, or any other circumstances beyond the reasonable control of the Seller however arising or however caused.
This Contract is deemed made at the Registered Office and shall in all respects be governed by English Law. The Buyer and the Seller hereby irrevocably submit to the jurisdiction of the English Courts.
Should any provision of this Contract become void or otherwise unenforceable for any reason, the validity of the remaining provisions shall not be affected thereby and the parties shall use their best endeavours to replace the provision which is void or unenforceable with a provision of similar economic effect.
15. Separate Items
The Seller may, if it so elects, treat each item separately priced on a quotation as the subject of a separate quotation and contract, and in such cases this Contract shall apply separately to each item.
Any express or implied waiver by the Seller of any item or condition of these Conditions or any breach or default by the Buyer may be terminated by the Seller at any time. No such waiver shall constitute a continuing waiver nor shall it prevent the Seller from acting upon any subsequent breach or default or from enforcing any of these conditions.
17.1 The Buyer agrees to indemnify and keep indemnified the Seller against all reasonable fees, costs and other expenses incurred by the Seller in enforcing this Contract or any of its terms or provisions.
17.2 The Buyer will indemnify the Seller against any loss it may suffer or liability it may occur in consequence of a claim brought by a third party arising out of the Buyer’s use, possession or re-sale of the Goods, whether such claim arises out of the Seller’s negligence or otherwise.
17.3 All paragraph and other headings contained in these Conditions are for reference purposes only, and shall not in any way affect the meaning or interpretation of this Contract.
Any dispute between the Seller and the Buyer is to be settled by arbitration in London in accordance with the provisions of the Arbitration Acts 1889 and 1934 or any statutory modification thereof for the time being in force.
Notices required to be given to the Seller must be sent to the Registered Office. Notices required to be given to the Buyer will be sent to the address specified by the Buyer for consignment of the goods unless the Buyer specifies a different address for this purpose.